Back in July the Air Force CCA issued a decision in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), in which it reversed a 2017 conviction for a rape alleged to have occurred in 2000.

The CCA took that action because in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held 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.

In Collins the CCA observed that:

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.

78 M.J. at 534. Furthermore, the CCA noted that even if the extension of the statute of limitations enacted by Congress in 2006 were retroactive, the ex post facto clause prohibits applying the extension in Collins because the time period under the pre-extension statute of limitations (as interpreted by Mangahas) expired before the extension.

On Monday the Air Force JAG certified the case to CAAF:

No. 19-0052/AF. United States, Appellant v. Richard D. Collins, Appellee. CCA 39296. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THAT THE 2006 AMENDMENT TO ARTICLE 43, UCMJ, CLARIFYING THAT RAPE IS AN OFFENSE WITH NO STATUTE OF LIMITATIONS, DID NOT APPLY TO APPELLEE’S 2000 RAPE OFFENSE.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLEE COULD SUCCESSFULLY RAISE THE STATUTE OF LIMITATIONS DEFENSE FOR THE FIRST TIME ON APPEAL.

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT THE MILITARY JUDGE COMMITTED PLAIN ERROR BY FAILING TO INFORM APPELLEE HE COULD RAISE THE STATUTE OF LIMITATIONS AS A BAR TO TRIAL.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 5th day of December, 2018.

CAAF is considering similar issues in United States v. Briggs, No. 16-0711/AF (CAAFlog case page). The oral argument in Briggs is scheduled for December 4, 2018.

Leave a Reply