Opinion Analysis: Reversing precedent, CAAF holds that the statute of limitations for rape (prior to amendments enacted in 2006) is five years, in United States v. Mangahas
CAAF decided the interlocutory Air Force case of United States v. Mangahas, 77 M.J. 220, No. 17-0434/AF (CAAFlog case page) (link to slip op.), on Tuesday, February 6, 2018. Answering only the issue specified by the court after oral argument, CAAF holds that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years. Accordingly, the decision of the Air Force CCA is reversed and a two-decade old allegation of rape is dismissed.
Judge Ryan writes for a unanimous court.
Mangahas is a lieutenant colonel (O-5) in the Air Force charged with a single specification of rape alleged to have occurred in 1997, when Mangahas was a cadet at the Coast Guard Academy. The alleged victim was a fellow cadet who reported her allegation at the time but did not participate in an investigation. But she made a new report in 2014 (to the Department of Veterans Affairs), a new investigation was initiated, and the charge was preferred in October 2015; eighteen years after the alleged offense.
Mangahas raised numerous objections, including objections based on the statute of limitations and on his due process (Fifth Amendment) right to a speedy trial. The speedy trial motion got traction, and a military judge dismissed the charge with prejudice (meaning Mangahas may never be tried), in part because the passage of time caused the loss of potentially-exculpatory evidence.
But the prosecution appealed, and a three-judge panel of the Air Force CCA reversed the military judge’s dismissal and allowed the trial to proceed. CAAF then ordered a stay of proceedings and granted review of the speedy trial issue:
Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating [Appellant’s] Fifth Amendment Right to a Speedy Trial.
CAAF also heard oral argument on the speedy trial issue. But then it specified a wholly different issue for review and ordered additional briefs:
In light of Coker v. Georgia, 433 U.S. 584, 598 (1977), and United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), was the offense of rape of an adult woman, a violation of Article 120, UCMJ, 10 U.S.C. § 920 (Supp. II 1997), a crime punishable by death within the meaning of Article 43, UCMJ, 10 U.S.C. § 843 (1994).
Article 43 of the UCMJ – like federal civil law – contains a baseline five year statute of limitations. Congress amended Article 43 in 1986 to add exceptions, including an exception for “any offense punishable by death.” Pub. L. 99–661, §805(a). At that time, the UCMJ allowed death as the maximum punishment for rape of a female (the offense wasn’t made gender neutral until 1992), and the prosecution of Mangahas depended on application of that capital exception.
Nine years before Congress added the capital exception to Article 43, however, the Supreme Court held that death is an unconstitutional punishment for the offense of rape of an adult woman in Coker v. Georgia, 433 U.S. 584, 598 (1977). CAAF acknowledged that limitation in United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), remarking that “in the absence of aggravating circumstances, [a death sentence] cannot be constitutionally inflicted [for rape of an adult].” Nevertheless, in Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998), CAAF held that “rape is an ‘offense punishable by death’ for purposes of exempting it from the 5-year statute of limitations of Article 43(b)(1),” regardless of whether there were aggravating factors that would make death a constitutionally-permissible punishment.
Now CAAF reverses Willenbring and its progeny, concluding 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, UCMJ.” Slip op. at 8 (emphases in original).
Judge Ryan’s analysis begins with recognition that CAAF is bound by decisions of the Supreme Court:
This Court is “generally not free to ‘digress’ from applicable Supreme Court precedent” on matters of constitutional law. United States v. Witham, 47 M.J. 297, 300 (C.A.A.F. 1997). “Absent articulation of a legitimate military necessity or distinction, or a legislative or executive mandate to the contrary, this Court has a duty to follow Supreme Court precedent.” United States v. Cary, 62 M.J. 277, 280 (C.A.A.F. 2006). No such articulation or mandate exists, and it is thus no surprise that, recognizing the import of Coker, our predecessor court noted that while the UCMJ authorized the death sentences for rape, in the absence of aggravating circumstances, such punishment cannot be constitutionally inflicted. United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986).
Slip op. at 5.
Judge Ryan then turns to stare decisis and CAAF’s precedent that “rape is an offense punishable by death . . . even if it could never be punished by death.” Slip op. at 6 (marks omitted). Explaining that “stare decisis is a principle of decision making, not a rule, and need not be applied when the precedent at issue is …‘badly reasoned,’” slip op. at 6 (quoting United States v. Quick, 74 M.J. 332, 336 (C.A.A.F. 2015)), Judge Ryan explains that CAAF finds the holding of Willenbring – that rape is punishable by death for Article 43 purposes – to be badly reasoned in four ways:
First, “punishable” is not a term of art and has an ordinary meaning. . . . Where, as in Willenbring, there is no set of circumstances under which the death penalty could constitutionally be imposed for the rape of an adult woman, since [sic] that offense is simply not “punishable by death” for purposes of the exception to the ordinary five-year statute of limitations. . .
Second, and relatedly, despite the admonition that criminal statutes of limitations are to be liberally interpreted in favor of repose, Willenbring instead effectively expanded the statute of limitations to include an offense that was not, in fact, punishable by death. . . .
Third, despite the duty to follow Supreme Court precedent, the Willenbring opinion engaged in no analysis of Coker, 433 U.S. 584. This failure to incorporate and analyze applicable Supreme Court precedent further undermines the precedential value of Willenbring.
Finally, Willenbring placed undue reliance on three federal civilian cases, none of which are either binding or analogous to the issue in Willenbring. . . In Willenbring, as in the instant case, the death penalty was completely unavailable on constitutional grounds. . . .
Slip op. at 6-7 (emphases in original) (marks and citations omitted). Judge Ryan concludes:
In the cases Willenbring relied on, the death penalty was a substantively available sentence for the offense at the time of the offense. Here, as in Willenbring, the death penalty is simply unavailable for the charged offense on constitutional grounds. We need not and do not decide today what potentiality or procedural posture equates to punishable by death. We simply hold 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, UCMJ. To hold otherwise, as we did in Willenbring, creates a grave “risk of undermining public confidence in the law.” Quick, 74 M.J. at 336
Slip op. at 8.
Like CAAF’s unanimous decision in United States v. Cooley, 75 M.J. 247 (C.A.A.F. May. 6, 2016) (CAAFlog case page), that reanimated the speedy trial right codified in Article 10, CAAF’s unanimous decision in this case resurrects the statute of limitations for rape, reflecting “the legislative judgment that ‘it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.'” Slip op. at 6 (quoting United States v. Kubrick, 444 U.S. 111, 117 (1979)) (marks omitted).
A footnote, however, highlights the limits of this decision:
Congress amended the statute of limitations in the military, so that at least for offenses committed on or after October 1, 2007, “[a] person charged with . . . rape or sexual assault . . . may be tried and punished at any time without limitation.” 10 U.S.C. § 843 (2012) (as amended by National Defense Authorization Act for Fiscal Year 2006, 109 Pub. L. 163, §553, 119 Stat. 3136, 3264 (2006) (effective October 1, 2007))). But see United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir. 1998).
Slip op. at 3 n.2 (marks in original). In other words, this decision applies only to allegations predating the effective date of the changes in the FY06 NDAA.
That effective date, however, is a little bit unclear. Two sections of that statute amended Article 43: § 552 (that also created the 2007 version of Article 120), and § 553 (that specifically eliminated any statute of limitations for murder, rape, and child abuse). The § 552 changes had a delayed effective date (October 1, 2007), but the § 553 changes were effective when enacted (January 6, 2006).
Nevertheless, that extension of the statute of limitations is not retroactive to the 1997 allegations in this case. See United States v. Lopez de Victoria, 66 M.J. 67, 72-74 (C.A.A.F. 2008) (last discussed here).
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