In United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF upended precedent to hold 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. Mangahas was charged with rape in 2015 based on allegations dating from 1997. He moved to dismiss on both due process (speedy trial) grounds and based on the statute of limitations (even though precedent was solidly against the statute of limitations challenge). The military judge agreed with the due process challenge and dismissed the charge, but the prosecution appealed and the Air Force CCA reversed the military judge. CAAF then granted review and reinstated the dismissal, but it did so by re-interpreting the applicable statute of limitations (CAAF did not decide the due process challenge).
A recent decision by the Air Force CCA applies Mangahas to reverse a rape conviction and dismiss the charge, even though the appellant did not object at trial. In United States v. Collins, __ M.J. __, No. 39296 (A.F. Cr. Crim. App. Jul 23, 2018) (link to slip op.), a three-judge panel of the CCA explains:
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 to the summary court-martial convening authority in March 2016. Accordingly, we must evaluate the events at trial in this light.
Slip op. at 6.
The case involves an allegation dating to 2000, when the alleged victim was attending initial accession training in the Air Force and Collins was one of her instructors. The alleged victim made the allegation in 2000, but she would not identify the assailant because “she did not want to ‘ruin a family.'” Slip op. at 3. The alleged victim specifically “denied that it had been one of her course instructors.” Slip op. at 3. Because she would not identify the assailant, military and civilian prosecutors ended their investigation, and the physical evidence was destroyed in 2012.
The alleged victim renewed her allegation in 2014, “this time identifying Appellant as having raped her at Sheppard AFB in 2000.” Slip op. at 3. A court-martial prosecution followed, and in 2017 Collins (then a Master Sergeant (E-7)) was convicted of a single specification of rape in violation of Article 120 and sentenced to confinement for 198 months, total forfeitures, reduction to E-1, and a dishonorable discharge.
Writing for a three-judge panel, Senior Judge Johnson rejects two arguments advanced by the Air Force Government Appellate Division.
First, relying on Musacchio v. United States, 136 S. Ct. 709 (2016), the Government Division argued 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.” Slip op. at 8. The CCA disagrees, distinguishing Musacchio 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.
Slip op. at 8 (emphasis added). Senior Judge Johnson notes:
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.
Slip op. at 9.
Second, the Government Division argued that the 2006 amendments to Article 43 (the statute of limitations) were retroactive to offenses where the statute of limitations had otherwise not expired at the time of the amendments. Senior Judge Johnson agrees that retroactive application might be an issue, but it isn’t an issue in this case because the amendments occurred more than 5 years after the alleged rape:
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 that day. It is unnecessary for us to reach those aspects of the Government’s argument because the five-year statute of limitations on the August 2000 rape charged in Appellant’s case did run before the 2006 amendment.
Slip op. at 10 (emphasis in original). But the Government Division didn’t miss that obvious fact. Rather, it argued 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.” Slip op. at 10. The CCA rejects that claim outright:
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. . . .
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 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.
Slip op. at 11.
The CCA sets aside the findings and the sentence and dismisses the charge.