In United States v. Mangahas, Misc. Dkt. No. 2016-10 (A.F. Ct. Crim. App. Ap. 4., 2017) (link to slip op.), a three judge panel of the Air Force CCA grants a Government appeal and reverses a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment.

The allegation dates back to February 1997, when the accused and the alleged victim were cadets at the United States Coast Guard Academy. The charges were preferred eighteen years later, in October 2015.

“There are a number of sources of the right to a speedy trial in the military: (1) statute of limitations; (2) Due Process Clause of the Fifth Amendment; (3) Sixth Amendment speedy-trial guarantee; (4) Articles 10 and 33 of the [UCMJ]; (5) RCM 707, [Manual for Courts-Martial]; and (6) case law.” United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995). Winning dismissal on due process grounds, however, is very difficult because it requires that the accused show both “an egregious or intentional tactical delay [by the prosecution] and actual prejudice.” Id. at 452.

In Mangahas the alleged victim’s claim was reported to Coast Guard officials prior to her graduation from the Academy in 1998, but it was not prosecuted. The Academy’s staff judge advocate at the time (CAPT TM) recalled that he met with the alleged victim (DS) and:

that during that meeting DS told him about a sexual assault committed by Appellee against her in her dorm room in February 1997. According to CAPT TM, however, DS did not want to go forward with a sexual assault prosecution at that time and therefore his office did not pursue an investigation, consider preferral of a charge, or explore referral of the allegation to a civilian jurisdiction. Over 16 years passed before DS again spoke with military investigative or prosecutorial authorities about the alleged 1997 sexual assault by Appellee.

Slip op. at 3. The allegation resurfaced in 2014 when “DS reported to the Department of Veterans Affairs (VA) that Appellee had raped her in 1997,” leading to further investigation and the preferred charge. Slip op. at 3. This passage of time forms the basis for the claim of egregious or intentional tactical delay.

For prejudice, the defense raised the issue of the death of a former Academy cadet counselor:

DS [the alleged victim] recalls that she met with PM [the counselor] within a month of the alleged sexual assault. According to DS, PM recommended she not continue counseling for the sexual assault because, to the extent she was seen as having a mental health issue, this could negatively impact her prospects for commissioning as an officer. CAPT TM, who knew PM in her capacity as a cadet counselor, expressed doubt at the preliminary hearing that PM would have ever attempted to dissuade a sexual assault victim from obtaining counseling services. PM passed away on 23 March 2016 without ever being questioned about a counseling session with DS regarding the alleged sexual assault and any recommendations she made.

Slip op. at 3-4. The death of PM forms the basis for the claim of actual prejudice.

The military judge granted a motion to dismiss the charge with prejudice, concluding that the delay was egregious and that the “the death and resultant unavailability of PM to impeach the credibility of DS caused actual prejudice to Appellee.” Slip op. at 4.

The CCA reverses by finding that any actual prejudice is merely speculative. It determines that “the actual substance of what PM’s trial testimony would be is speculative,” slip op. at 11, and that “even assuming that PM were to directly rebut DS, the absence of that testimony, as discussed above, does not deny Appellee the ability to mount an effective defense,” slip op. at. 12. Writing for the panel, Judge Harding concludes:

In addition to the ability to raise the VA disability benefits as a motive to fabricate, Appellee has at least two witnesses that this court is aware of who can impeach DS’s credibility. First is CAPT TM, especially as to her account of how she reported and when she did so. Second is Commander SH who, contrary to DS’s assertion, denies that DS ever told her about being sexually assaulted. Finally, in assessing how the absence of PM’s testimony potentially impacts Appellee’s ability to mount a defense, we note that an ob-vious import of PM’s unavailable testimony is that DS made a complaint to a USCGA official within weeks of the alleged sexual assault. “Fresh complaint” evidence or evidence of reporting a sexual assault close in time has often been viewed as corroborative of the complaint itself. PM’s potential testimony, in addition to possibly addressing a recommendation regarding continued coun-seling, would also potentially establish that DS reported the sexual assault to a USCGA official within the same month. Further, if Appellee were to put on evidence of a motive to fabricate the sexual assault to the VA, then any details that DS provided PM about the sexual assault itself may be admissible for sub-stantive purposes as a prior consistent statement under Mil. R. Evid. 801(d)(1)(B). Perhaps what this best illustrates is the difficulty in assessing actual prejudice before the case is even tried.

Slip op. at 12.

9 Responses to “The Air Force CCA reverses a dismissal granted for a Fifth Amendment speedy trial violation”

  1. Scott says:

    The common refrain in cases of pre-preferral delay is, as the court quotes, “An accused’s primary protection against unreasonable delay by the government in bringing charges is the statute of limitations. United States v. Marion, 404 U.S. 307, 322 (1971).”
     
    I think that rationale is getting less convincing, however, as SOL’s have been so drastically expanded, in particular in sexual assault cases.  Many of these offenses, which even more than other categories of cries rely heavily on memory and eye-witness testimony, now have no SOL at all.  So it’s hard to fall back on a limitation that barley exists, or does not exist at all, as a protection from unreasonable delay.
     

  2. Zachary D Spilman says:

    I think you’re right Scott. If anyone knows of any good analysis of due process concerns raised by the trend towards longer (or indefinite) statutes of limitations, please forward it to zack@caaflog.com

  3. Tami a/k/a Princess Leia says:

    Interesting that AFCCA repeatedly refers to this as “sexual assault” but not “rape.”  Seems to me that this may have been inflated from “sexual assault” to “rape” to get around the statute of limitations in effect in 1997.  I have seen this happen before.
     
    So what is the theory of “rape?”  And you have to go with the definition in effect in 1997.  What may be considered as “sexual assault” by today’s standards was probably not considered “sexual assault” back in 1997.  Bill Cosby’s case is an excellent example of this phenomenon of using current standards to criminalize conduct that was “normal” back in the days.  Perhaps if the counselor had written SOME record of the “counseling session,” AFCCA’s decision could be justified.  But no record of a counseling session, SJA saying she wasn’t interested in pursuing it, a claim for VA benefits (which by the way, if you are being separated from service due to PTSD from sexual assault, the minimum VA rating is 50%!), plus no details in the charge sheet, plus a timeframe of an entire month, so he has to figure out exactly where he was each day more than 20 years ago, and talking about a dream of some guy who raped her and she didn’t identify her alleged assailant when she made the “fresh complaint,” he shouldn’t be forced to defend himself after such a long time.  Also, is the Government pursuing this on its own, or is she pushing for a prosecution?  Because if she is pushing for a prosecution, why now?

  4. stewie says:

    So basically, p in v to get around the SOL then yes? Anything short of that more or less won’t fit the 97 definition of rape.

  5. PJM says:

    Can a successful motion under the SOL be made to bar all the LIOs at the outset?

  6. Tami a/k/a Princess Leia says:

    I wouldn’t want to bar any SOLs.  I would want instructions on all LIOs applicable under 1997 standards, then if there’s a finding of guilt on an LIO, move for dismissal under RCM 907(b)(2)(B).  SOL for a sex crime less than rape was 5 years in 1997.  Therefore, if the government wants to prosecute, the only option is to charge rape.  I wouldn’t want to limit the fact-finder’s options to rape or nothing, because if the fact-finder decides he did SOMETHING wrong, then the fact-finder will be more likely to find him guilty.  Maybe it wasn’t “rape rape,” but it was “rape-ish” or “gray rape,” or something along those lines, if a fact-finder is thinking along those lines, that increases the chances of conviction for rape.
     
    This is why I’m so interested in the factual details, along with the theory of “rape.”

  7. stewie says:

    I hear you Tami, but would the MJ allow instructions on offenses they know are barred by the SOL?
    I’m too lazy to look it up, is the SOL waivable?

  8. k fischer says:

    Waivable under R.C.M. 907, but the MJ has to advise the accused who appears to be unaware of the bar.  Also, this could be dealt with during instructions.
     
    When the statute of limitations has run as to a lesser included offense, but not as to the charged offense, see R.C.M. 920(e)(2) with regard to instructions on the lesser offense. It’s up to the Accused whether to waive.
     
     
     
    920(e) (Instructions)
    (2) A description of the elements of each lesser included offense in issue, unless trial of a lesser included offense is barred by the statute of limitations (Article 43) and the accused refuses to waive the bar;
     
     
     

  9. Observer says:

    Stewie: SOL can be waived, but it requires an affirmative waiver.  If any of the charges are barred by the SOL, the MJ has a duty to raise it sua sponte, otherwise it is plain error.