This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral arguments at CAAF are on March 27, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, March 21, 2019, at 10 a.m.:

United States v. Sanchez, No. 20140735

Issue: Whether the military judge erroneously considered charged conduct under Military Rule of Evidence 413.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Well son you got a statement you’d like to make

Before the bailiff comes to forever take you away

Now judge judge I had debts no honest man could pay

The bank was holdin’ my mortgage and they was takin’ my house away

Now I ain’t sayin’ that makes me an innocent man

But it was more ‘n all this that put that gun in my hand

And if you can take a man’s life for the thoughts that’s in his head

Then won’t you sit back in that chair and think it over judge one more time

Bruce Springsteen, Johnny 99, on NEBRASKA (Columbia Records 1982)

The most recent publication of the Air Force Law Review contains an article delving into the propriety of allowing convicted servicemembers to make unsworn statements before sentencing in trials by court-martial. The article is by Air Force Major John S. Reid and is entitled “Undoing the Unsworn: The Unsworn Statement’s History and a Way Forward,” 79 A.F. L. Rev. 121 (2018).

Read more »

In a federal register notice published yesterday and available here, the Joint Service Committee on Military Justice (JSC) invites members of the public to suggest changes to the Manual for Courts-Martial.

Proposed changes are due by May 13, 2019.

On Tuesday CAAF summarily affirmed the Air Force CCA’s decision in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here).

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.

An unsurprising result considering the court’s unanimous decision in United States v. Briggs, __ M.J. __ (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

Last week Marine Staff Sergeant (E-6) Larrabee filed this federal lawsuit seeking declaratory relief that his court-martial conviction is unconstitutional. The suit cites the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02, as the basis for the relief requested.

Larrabee completed 20 years of active duty service in 2015 and requested transfer to the Fleet Marine Corps Reserve (FMCR). The FMCR accepts enlisted Marines with more than 20 but less than 30 years of active duty service, and its purpose is “to maintain a ready manpower pool of trained Marines for recall and mobilization.” MCO 1900.16, para 7001.2. A Marine in the FMCR receives retainer pay (computed at the same rate as retired pay) until the Marine achieves 30 years of service, at which point the Marine may actually retire (by transferring to the retired list). See 10 U.S.C. § 8326. Personnel on the retired list are, of course, subject to court-martial jurisdiction. So too are members of the FMCR. See Article 2(a)(6).

Larrabee transferred to the FMCR on August 1, 2015. At the time of his transfer he was stationed in Iwakuni, Japan, which is a deployed location. Larrabee remained in Iwakuni and got a job managing local bars. Just three months after his transfer to the FMCR, Larrabee video-recorded himself sexually assaulting a woman at one of the bars; a place named Teaserz that is approximately 1000 feet from the gate of the nearby Marine Corps Air Station. The woman worked as a bartender at the bar. She was also the wife of an active-duty Marine sergeant stationed at the nearby Marine Corps Air Station.

The woman reported the assault to military authorities. They interviewed Larrabee, he made a number of admissions, and he was eventually charged with numerous offenses. He pleaded guilty (pursuant to a pretrial agreement) at a general court-martial composed of a military judge alone to sexual assault and indecent recording in violation of Articles 120 and 120c, and was sentenced to confinement for eight years, a reprimand, and a dishonorable discharge.

On appeal, Larrabee challenged the existence of court-martial jurisdiction over him as a member of the FMCR. The NMCCA summarily rejected the challenge in an unpublished opinion available here, and CAAF summarily affirmed, 78 M.J. 107 (C.A.A.F. Aug. 22, 2018). Larrabee then petitioned for certiorari, the Solicitor General opposed cert. on numerous grounds, and the petition was denied last month. Larrabee’s federal suit follows.

The suit faces incredibly long odds of success, not just because the facts of Larrabee’s case raise uniquely military concerns and the Declaratory Judgment Act is an odd tool to try and win reversal of a court-martial conviction that is final and conclusive, but also because Larrabee’s complaint makes a number of remarkably dubious assertions.

Read more »

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral arguments at CAAF are on March 27, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 21, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Monday, March 11, 2019, at 1 p.m.:

United States v. Armendariz, NMCCA No.201700338

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant, contrary to his pleas, of violating a lawful general order, violating a lawful general regulation, sexual assault, abusive sexual contact, and adultery in violation of Articles 92, 120, and 134, UCMJ, 10 U.S.C. §§ 892, 920, 934 (2016). The Members sentenced Appellant to eighteen months’ confinement and a dishonorable discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed.

Issue: Did the military judge abuse his discretion in denying the defense’s motion to suppress evidence seized during searches on 25-26 July 2016 of MSgt Armendariz’s body, phones, vehicle, office, and office wall locker?

Last week CAAF granted review in an Army case and the Judge Advocate General of the Air Force filed a cross-certification in a case in which CAAF granted review last month.

Read more »

Significant military justice event this week: CAAF’s 2019 Continuing Legal Educationand Training Program is this week, on Wednesday and Thursday, March 6-7, at American University Washington College of Law. Additional information is available here.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled date for oral arguments at CAAF is March 19, 2019

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 21, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 11, 2019.

CAAF decided the Air Force case of United States v. Hamilton, __ M.J. __, No. 18-0135/AF (CAAFlog case page) (link to slip op.), on Thursday, February 28, 2019. Concluding that the military judge erred in admitting three victim impact statements into evidence during the sentencing phase of the court-martial – because they were not admissible under any rule – the court avoids answering the separate question of whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) is evidence that is subject to any of the Military Rules of Evidence. Nevertheless, despite finding error, CAAF finds no prejudice and it affirms the findings ans sentence as affirmed by the Air Force CCA.

Judge Ryan writes for a unanimous court.

Senior Airman (E-4) Hamilton pleaded guilty to wrongful possession and distribution of child pornography, and a military judge sentenced him to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge. During the sentencing phase of the court-martial, the prosecution offered three exhibits as either evidence in aggravation (admissible under R.C.M. 1001(b)(4) (2016)) or statements of victims (admissible under R.C.M. 1001A (2016)). The exhibits were:

Prosecution Exhibit 4: A statement from the child (identified as B) depicted in some of the images possessed by Hamilton, and also a statement from her mother.

Prosecution Exhibit 5: A video of a speech given by B at a conference about crimes against children.

Prosecution Exhibit 6: A written statement from another child (identified as J) depicted in other images possessed by Hamilton.

Hamilton’s defense counsel objected but the military judge overruled the objection. His ruling, however, did not clearly identify the basis for admission of the exhibits. Hamilton renewed his objection on appeal, but the Air Force CCA rejected it. The CCA concluded that the exhibits were admissible as statements of a victim under R.C.M. 1001A and that such statements “are not evidence” and so the Military Rules of Evidence “do not apply” to them. United States v. Hamilton, 77 M.J. 579, 584–86 (A.F. Ct. Crim. App. 2017) (analyzed here).

CAAF then granted review of two issues:

I. Are victim impact statements admitted pursuant to R.C.M. 1001A evidence subject to the Military Rules of Evidence?

II. Whether the military judge erred in admitting prosecution exhibits 4, 5, and 6.

Finding that the military judge erred in admitting the exhibits under any rule, CAAF does answer not address whether a R.C.M. 1001A statement is evidence subject to the Military Rules of Evidence (though it does give some hints) because to decide that question “would constitute an advisory opinion.” Slip op. at 11.

Read more »

Yesterday CAAF granted review in this Army case:

No. 19-0050/AR. U.S. v. Luke D. English. CCA 20160510. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following assigned issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS CAN FIND THE UNLAWFUL FORCE, AS ALLEGED, FACTUALLY INSUFFICIENT AND STILL AFFIRM THE FINDING BASED ON A THEORY OF CRIMINALITY NOT PRESENTED AT TRIAL.

Briefs will be filed under C.A.A.F. R. 25.

The CCA’s opinion is available here. It primarily addressed the military judge’s erroneous admission of a hearsay statement as a recorded recollection under Mil. R. Evid. 803(5). But the CCA also found part of one of the convictions to be factually insufficient:

Notwithstanding the credit we give to DE’s version of events, the evidence still has to support the charging language. With respect to some of the language in Specification 6 of Charge I, the record of trial is completely silent. Specification 6 of Charge I reads as follows:

[In that appellant] [d]id on or about 18 September 2015, at or near Fort Bliss, Texas, commit a sexual act upon Ms. [D.E.], to wit: penetrating her mouth with his penis, by unlawful force to wit: grabbing her head with his hands.

While we find there was sufficient evidence to prove appellant committed the sexual act by unlawful force, there is no evidence that he did so by “grabbing her head with his hands.” Therefore, we will strike that language in our decretal paragraph. . . .

Specification 6 of Charge I, excepting the words “to wit: grabbing her head with his hands,” is AFFIRMED. The findings of guilty as to Additional Charge I and its specifications are SET ASIDE. The remaining findings of guilty are AFFIRMED.

Slip op. at 10-11 (modifications in original). The obvious question is: if there was no evidence that the appellant grabbed the alleged victim with his hands, then what (if any) unlawful force did he use?

CAAF decided the Army case of United States v. Kohlbek, __ M.J. __, No. 18-0267/AR (CAAFlog case page) (link to slip op.), on Monday, February 25, 2019. Reviewing the seemingly-blanket prohibition in Mil. R. Evid. 707 against admitting evidence of polygraph examinations, CAAF concludes that the prohibition is not so broad. In this case, however, the military judge’s ruling prohibiting the defense from introducing evidence that a confession was preceded by a polygraph is harmless error because of the strength of the other evidence of guilt.

Judge Ryan writes for a unanimous court.

CAAF granted review of one issue:

Whether the military judge erred by misconstruing Mil.R.Evid. 707 and prohibiting Appellant from presenting evidence relevant to Appellant’s post-polygraph statement.

Specialist (E-4) Kohlbek was tried by a general court-martial composed of a military judge alone. He pleaded guilty to three specifications of assault consummated by a battery upon a child under sixteen years old, in violation of Article 128, as lesser included offenses of sexual abuse of a child in violation of Article 120b. The prosecution then proceeded to trial on the greater offenses, resulting in Kohlbek’s conviction of four specifications of sexual abuse of a child. The military judge sentenced Kohlbek to confinement for 15 months, reduction to E-3, and a bad-conduct discharge.

Kohlbek’s convictions relate to an encounter with a girl identified by the initials AH. AH was a friend of Kohlbek’s step-daughter and she spent a night at Kohlbek’s home. While she was there, Kohlbek got drunk, entered the room where AH was sleeping, and sexually touched AH. AH immediately reported the incident and military police apprehended Kohlbek.

Kohlbek did not deny wrongdoing (rather, he pleaded guilty to assaulting the girl), but he did claim no memory of the incident. In turn, Kohlbek’s defense counsel asserted that Kohlbek was too drunk to form the specific intent required for the charged sexual offense. But the defense had a problem: Kohlbek confessed. Specifically, Kohlbek agreed to be questioned by military investigators and he agreed to take a polygraph examination. After the polygraph, investigators told Kohlbek (quite predictably) that he failed the polygraph and they continued to interrogate him, eventually leading Kohlbek to say:

Fine. I did it. I will write whatever you want. I’ll write a sworn statement to it. Just get me out of here.

Slip op. at 4 (quoting CCA opinion). Kohlbek’s confession followed. Kohlbek’s defense counsel tried to undermine the truthfulness of the confession by showing that it was given after a polygraph and under duress. But the military judge prohibited the defense from doing so based on the prohibition in Mil. R. Evid. 707(a) that states:

Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

Kohlbek challenged that ruling on appeal, asserting that the rule is not so broad that it prohibits any mention of a polygraph whatsoever and also that if it is so broad then it unconstitutionally infringes on the right to present a defense. In yesterday’s opinion CAAF agrees that the rule is not so broad (and deliberately avoids the constitutional question).

Read more »

This week at SCOTUS: The cert. petition in Larrabee was denied last week. I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled date for oral arguments at CAAF is March 19, 2019

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 5, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows an oral argument in one case this week, on Friday, March 1, 2019, that appears to be a rescheduling of an argument originally scheduled for January 31:

United States v. Baas, No. 201700318

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of conspiracy, one specification of making a false official statement, two specifications of committing a sexual act upon a child, two specifications of producing child pornography with intent to distribute, and two specifications of distributing child pornography in violation of Articles 81, 107, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, 920b, and 934 (2012). The appellant was sentenced to fifteen years’ confinement, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered it executed.

Issues:
I. Did the military judge abuse his discretion in admitting the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer?

II. Did the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer constitute testimonial hearsay, the admission of which violated the Sixth Amendment?

CAAF decided the Army case of United States v. Smith, __ M.J. __, No. 18-0211/AR (CAAFlog case page) (link to slip op.), on Friday, February 22, 2019. In a short, per curiam opinion, the court finds any error waived.

Warrant Officer One (W-1) Smith was convicted of two specifications of indecent recording in violation of Article 120c(a) (2012) and sentenced to confinement for two months and a dishonorable discharge. The allegations arose after a young woman saw Smith take a photograph under her dress using an iPhone. She sounded the alarm, Smith was quickly apprehended, and the iPhone was seized. Military investigators then sought authorization to search the iPhone and also to seize and search any other Apple product in Smith’s residence under the theory that the iPhone could synchronize with those products. The authorization was granted, several other devices were seized, and all of the devices were sent for examination. After some forensic wizardry, investigators discovered incriminating videos on the iPhone.

Smith’s defense counsel moved to suppress the videos at trial, arguing that the iPhone was unlawfully seized (at the time of the woman’s complaint) and that the search authorization of the iPhone was not supported by probable cause. The motion was denied, the videos were admitted, and Smith was convicted. Smith renewed the suppression issue on appeal, but asserted a new basis: that investigator unlawfully used the other devices to gain access to the contents of the iPhone. The Army CCA refused to consider Smith’s new argument because it wasn’t presented to the trial military judge, but the CCA also held that the good faith exception applied. CAAF then granted review of two issues:

I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

Those issue have complex wording but present two relatively-straightforward questions: First, whether the good faith exception to the warrant requirement applies (an issue more directly presented in a different case – United States v. Perkins, No. 18-0365/MC (CAAFlog case page) – that was argued on the same day as Smith). Second, whether waiver applies.

When an issue is waived there is no error to correct on appeal, and “waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right.” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (CAAFlog case page) (marks and citations omitted). Smith involved the possibility of waiver by operation of law because Mil. R. Evid. 312(d)(2)(A) requires a motion to suppress seized evidence to be made prior to entry of pleas and CAAF’s precedent states that such a motion must identify the particular reasons why the evidence should be suppressed (with unidentified reasons waived). That precedent includes an opinion from just 11 months ago, in United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page), in which CAAF applied waiver in an almost identical situation. Robinson’s trial defense counsel moved to suppress text messages seized from Robinson’s cell phone on the basis that Robinson’s consent to the seizure was involuntary, but then Robinson’s appellate defense counsel argued that the messages should have been suppressed because the seizure exceeded the scope of Robinson’s consent. Both the Air Force CCA and CAAF applied waiver to the basis raised on appeal, with Judge Ohlson writing that:

We note that the issue of waiver under M.R.E. 311(d)(2) was previously reached. United States v. Stringer, 37 M.J. 120, 125 (C.M.A. 1993) (“In view of the absence of a particularized objection at trial … we will consider the issue waived.”); see also id. at 132 (Wiss, J., concurring in the result) (finding that waiver “makes good sense” under M.R.E. 311(d) when defense counsel’s objection to issues other than that raised on appeal prevented appellate issue from being litigated at trial and may have precluded prosecution from submitting evidence which would have clarified matter).

Robinson, 77 M.J. at 307 n.6 (omission in original).

Nevertheless, in Smith the Army Government Appellate Division conceded that waiver does not apply. CAAF, however, rejects that concession:

In light of our unambiguous holding in Robinson, we reject the Government’s concession that “[w]here [an] appellant moves to suppress evidence under M.R.E. 311 but fails to articulate a possible ground upon which to suppress the evidence, this forfeits (but does not waive) the issue.” While the Government correctly notes that “this Court has found that there are instances where the plain language of a military rule for court-martial or rule of evidence reads ‘waiver’ but may be interpreted as ‘forfeiture,’ ” it somehow missed the fact that we have already decided that this is not one of those instances. Given the parties’ confusion, we take this opportunity today to reiterate that failure to object under M.R.E. 311 constitutes waiver, not forfeiture. Robinson, 77 M.J. at 307.

In the instant case, it is indisputable that Appellant failed to raise the use of his computer as a “key” to open his iPhone as a possible ground for suppression in either his written motion to suppress or at the suppression hearing. Appellant concedes this point. Thus, he waived the issue.

Slip op. at 2-3 (modifications in original).

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

The International Commission of Jurists is a non-governmental organization focused on promoting the rule of law. It was founded in 1952 to investigate Soviet human rights abuses, but has expanded its practice since that time. The commissioners are 60 eminent judges, attorneys and academics from around the world. Their work has won prestigious awards from the Council of Europe and the United Nations.

In a recent publication entitled “The Right to a Remedy and Reparation for Gross Human Rights Violations,” the Commission opined:

Experience has shown that the judgment of gross human rights violations by military tribunals has frequently led to impunity for those violations, denial of the right to an effective remedy (especially as leading to prosecution and punishment of those responsible) and the denial of reparation to victims. This recurring phenomenon has led international bodies to hold that gross violations of human rights should be tried by civilian and not by military courts.

The Right to a Remedy, at 246. In turn, the Commission of Jurists defines “gross human rights violations” as:

Violations that affect in qualitative and quantitative terms the most basic rights of human beings, notably the right to life and the right to physical and moral integrity of the human person.

The Right to a Remedy, at xii. Accordingly, in the Commission of Jurists’ eyes, “gross human rights violations” would include:

Genocide, slavery and slave trade, murder, enforced disappearances, torture or other cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention, deportation or forcible transfer of population, and systematic racial discrimination[.] . . . Deliberate and systematic deprivation of essential foodstuffs, essential primary health care or basic shelter and housing may also amount to gross violations of human rights.

Id.

The Commission of Jurists also endorsed the view of the UN Commission on Human Rights, which has held:

The competence of military tribunals should be limited to strictly military offences committed by military personnel and should exclude military offenses committed against the civilian population.

The Right to a Remedy, at 247. The Commission of Jurists notes that several other prominent international organizations have similarly adopted the UN Commission on Human Rights’ position.

The Commission of Jurists concluded:

In sum, the competence of military justice should be defined by a functional criterion.  Military courts should have competence over offences of a military nature committed by military personnel. Gross human rights violations cannot be understood to ever constitute offences of a military nature and therefore should not, in principle, be tried by military courts.

The Right to a Remedy, at 250.

Readers may wonder what impact the International Commission of Jurists’ opinions might have on actual practice.

Read more »

CAAF decided the Air Force case of United States v. Briggs, __ M.J. __, No. 16-0711/AF (CAAFlog case page) (link to slip op.), on Friday, February 22, 2019. Applying last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF holds that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive, and that military law requires a military judge to advise an accused on the statute of limitations if it applies. Accordingly, CAAF reverses the appellant’s conviction of rape and dismisses the charge.

Judge Maggs writes for a unanimous court.

In 2014, Lieutenant Colonel (O-5) Briggs was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of rape in violation of Article 120 (pre-2007). The rape was alleged to have occurred nine years earlier, in 2005. The military judge sentenced Briggs to confinement for five months, a reprimand, and to be dismissed.

At the time of Briggs’ trial, CAAF’s precedent held that there was no statute of limitations for the offense of rape. As a result, Briggs did not raise a statute of limitations defense at trial. On appeal, however, Briggs did raise the issue, but the Air Force CCA refused to consider it because Briggs had not raised it at trial. The CCA affirmed the findings and sentence, and CAAF denied review of Briggs’ claim that he received ineffective assistance of counsel when his defense counsel failed to raise the statute of limitations at trial. But Briggs’ case became one of many trailer cases to Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (CAAFlog case page), in which the Supreme Court held that an appellate military judge may also serve as an assigned judge of the Court of Military Commission Review. And while SCOTUS was considering Ortiz, CAAF decided Mangahas.

Mangahas reversed 20 years of precedent and reinterpreted the statute of limitations for rape of an adult, clarifying that rape (without aggravating factors) is not constitutionally punishable by death and so the statute of limitations was just five years (until Congress changed the law in 2006). CAAF’s decision in Mangahas resulted in the dismissal of a then-pending rape charge for conduct alleged to have occurred in 1997, and it also led the Air Force CCA to reverse a 2017 conviction for a rape alleged to have occurred in 2000, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here).

CAAF’s decision in Mangahas gave life to the the statute of limitations issue in Briggs, and SCOTUS remanded the case for review in light of Mangahas. CAAF then agreed to consider two issues:

I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.

In today’s decision CAAF holds that the 2006 change to the statute of limitations (Article 43) does not apply retroactively, meaning that the statute of limitations applicable in Briggs’ case is just five years. CAAF also holds that a statute of limitations defense can be raised for the first time on appeal, though when that happens the issue is tested for plain error. But because plain error applies the law as it exists at the time of the appeal (and not as it existed at the time of trial), Magahas makes the error plain and Briggs’ conviction is reversed.

Read more »