In a scathing opinion in United States v. Christopher, No. 201600249 (N.M. Ct. Crim. A.. Dec. 28, 2017) (en banc) (link to slip op.), the NMCCA concludes that:

the appellant’s trial defense team was ineffective because they erroneously concluded that the statute of limitations was inapplicable to his case.

Slip op. at 3. Judge Jones writes for a unanimous court. The counsel are not identified.

Petty Officer First Class (E-6) Christopher was nearly retirement eligible (and was pending medical retirement) when his step daughter accused him of sexually assaulting her and her siblings years earlier. Retirement processing stopped and court-martial proceedings began.

But Navy bureaucracy – like a Naval vessel – stops slowly, and Christopher received a retirement DD-214. His defense counsel then claimed that the DD-214 deprived the court-martial of personal jurisdiction, even though Article 2(a)(4) specifically provides that retired members are subject to the UCMJ, and Article 3(a) makes the change in status from active to retired irrelevant. The military judge rejected the claim, and Christopher’s defense counsel sought a writ from the CCA. The CCA denied the writ in 2015 (discussed here), and CAAF denied review.

Christopher then pleaded guilty to indecent acts committed with a child in July 2003 (not in June 2004 as was charged). The CCA explains that:

this date difference was significant because effective 24 November 2003 Congress modified Article 43, UCMJ, by extending the statute of limitations for child abuse offenses from 5 years from the date of the offense to the child attaining the age of 25 years. Accordingly, an offense occurring in July 2003 was barred from prosecution by the [five-year] statute of limitations in 2008.

Slip op. at 4. The military judge accepted the plea. The members were then informed of the guilty plea and they convicted Christopher of additional offenses after a contested trial.

Christopher did not realize that the statute of limitations applied to his offense until:

sometime after the trial ended, [when] the appellant hired new civilian defense counsel who informed him that three of his four convictions were barred by the statute of limitations. In response, the appellant released both his military counsel and his original civilian defense counsel and filed a motion for a mistrial on the merits. The military judge dismissed with prejudice the two Article 128, UCMJ, violations on his natural children—from 2000-2001—as being outside the statute of limitations. But she refused to dismiss the Article 134, UCMJ, indecent acts against a child charge involving EH and the disputed dates, reasoning that the evidence at trial supported the members’ verdict that the incident occurred in 2004. The military judge then declared a mistrial only as to sentencing.

Slip op. at 6.

On appeal Christopher challenged the military judge’s refusal to grant a mistrial as to all offenses, and he claimed that he received ineffective assistance of counsel.

Christopher’s military defense counsel submitted an affidavit explaining that he identified a potential statute of limitations issue in the case but:

I believed the issue was clearly and definitely addressed in the analysis section of the [MANUAL FOR COURTS-MARTIAL] (2012 ed.), page A21-57, which indicated that the new statute of limitations permitted unexpired periods to be extended by the new statute, but that it does not allow the statute to renew an expired period. The analysis cited the case of United States v. Ratliff, 65 M.J. 806 [(N-M. Ct. Crim. App. 2007)] which held that “extensions of the Article 43, UCMJ, statute of limitations apply to any child abuse offense for which the original statutory period had not expired when the extensions were enacted.” I pulled Ratliff from the [Navy-Marine Corps Court of Criminal Appeals] website, but I failed to Shepardize the case. Based on this research I concluded that there was no statute of limitation bar to prosecution of [the appellant] in the particular case.

As a result of my research on the issue I informed [the appellant] that the statute of limitations was extended, and that there was no bar to prosecution of any charges against him. Accordingly, I filed no motions on his behalf regarding the statute of limitations, nor did I explain to [the appellant] the importance of the year in which events occurred.
. . . .
Prior to trial [the appellant] hired . . . civilian defense counsel . . . [who] immediately identified the statute of limitations issue and I informed him that I had researched it and explained to him the guidance that was in the analysis section of the [MANUAL FOR COURTS-MARTIAL, (2012 ed.)].

Slip op. at 11-12 (quoting affidavit) (marks in original).

The CCA explains that:

The [trial defense team] relied on our 2007 decision in Ratliff, where we held that the changes to Article 43, UCMJ, applied retroactively. In that opinion, however, we noted that our superior court was, at the same time, reviewing an Army case with the identical issue.

Slip op. at 12 (emphasis added). The Army case was United States v. Lopez de Victoria, 66 M.J. 67, 74 (C.A.A.F. 2008), an interlocutory prosecution appeal under Article 62 in which CAAF held that the changes to Article 43 are not retroactive (and also that it has jurisdiction over interlocutory prosecution appeals). The case was part of Jurisdictionpalooza and the title of the opinion analysis post was: Wow. Then we referenced it while declaring 2008: The Year of Jurisdiction, and it was again referenced in the #8 Military Justice Story of 2008.

But Christopher’s defense team missed it.

Analyzing for ineffective assistance of counsel the CCA – unsurprisingly – finds that this was deficient performance. Not too surprisingly, it also finds prejudice:

We are confident that awareness of the correct statute of limitations would have so altered the progress of this trial and affected the appellant’s decisions that there is a reasonable probability there would have been a different result.

Slip op. at 13. But:

Even if we could not find a reasonable probability that the results of trial would be different, the repeated failure to identify the statute of limitations issue through multiple phases of investigation and trial deprives us of confidence the trial was fair and reliable.

Slip op. at 16.

And Judge Jones finds plenty of blame to go around:

We cannot have confidence in the outcome of the trial when all of the attorneys involved missed the applicability of such a seminal issue: the officer who preferred the charges; the officer who swore the charges; the officer who conducted the Article 32, UCMJ, proceeding; the SJA; both trial counsel; the military defense counsel; the civilian defense counsel; and two experienced military judges.

The legal system failed the appellant. It is our judgment, based on the entire record, that the findings and the sentence in this court-martial should not be approved. Arts. 59(a) and 66(c), UCMJ.

Slip op. at 16.

The only person who doesn’t get blame is the convening authority.

4 Responses to “The NMCCA reverses for IAC because civilian and military defense counsel applied the wrong statute of limitations”

  1. Mister Underhill says:

    Yup, clear as a bell.
    Maybe no one caught “the applicability of such a seminal issue” because the morass of evolving statutes, retroactive applicability, and the musical chairs of executive orders and NDAAs is confusing as hell. Oh by the way it is being executed by a bunch of “generalists” with a grand total of 2-8 years of military justice experience….  but that’s just my guess.
    I mean if your TC, DC, SJA, and Military Judge miss it… maybe that should tell you something about how clear all of this is… (with apologies to the #8 Military Justice Story of 2008)

  2. k fischer says:

    Mister Underhil (trying to figure out if that is a “Fletch” or “Lord of the Rings” referencel, 
    Thanks for the concise injection of truth regarding this case and the state of Article 120 prosecutions since 2007. 
    Since becoming a civilian defense counsel in 2007, right when the craziness began with the first amendment to Article 120 eliminating lack of consent as an element to the offense, I have learned that it is much easier to take only those Article 120 cases where there is an identifiable villain who is not my client, there is a clear motive to fabricate, there is a possibility of a mental health issue, and the defense is “I never even touched her” or “I didn’t do that” rather than figure out the many different elements of each subsection of each crime and their defenses.  Because I am smart enough to recognize that I am not that smart…….

  3. Nathan Freeburg says:

    Full disclosure: once as a TC I drafted a long charge sheet that included several specs barred by the SOL (non-120 related).  I missed the SOL issue.  So did at least 3 other TCs, 2 SJAs, three different civilian defense counsel and at least one TDS counsel.  The MJ caught it (by then I had gone to TDS at another installation so the case had long been out of my hands).
    With that said, I wonder why in this case the DCs went to the written MCM instead of going to CAAF digest (sometimes military folks can be rather anachronistic).  I checked CAAF digest and the relevant Lopez de Victoria holding is covered…just in a weird place: “Pretrial: Charges and Specifications” (if you check “Jurisdiction” you’re not going to find it). I rather agree with Mister Underhill and k fischer.  It can be a mess.

  4. stewie says:

    I’m not going to dispute there’s been a ton of changes here in sexual assault law, and criminal law in general. It can be confusing, but I’m not sure I disagree with the court, and indeed the TDS counsel himself, that simply Shepardizing the case would have led to the proper assessment of the correct SOL.