CAAF will hear oral argument in the Air Force case of United States v. Briggs, No. 16-0711/AF (CAAFlog case page), on Tuesday, December 4, 2018, after the argument in Cooper. The case was remanded to CAAF by the Supreme Court in August for review in light of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), which reinterpreted the statute of limitations for the offense of rape of an adult. CAAF will consider two issues involving the application of the new rule in this case:

I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.

In 2014, Lieutenant Colonel (O-5) Briggs was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of one specification of rape in violation of Article 120 (pre-2007). The rape was alleged to have occurred nine years earlier, in 2005. The military judge sentenced Briggs to confinement for five months, a reprimand, and to be dismissed.

The Air Force CCA affirmed the findings and sentence in 2016. The case then became one of many trailer cases to Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (CAAFlog case page), in which the Supreme Court held that an appellate military judge may properly also serve as an assigned judge of the Court of Military Commission Review. Prior to the Court deciding Ortiz, however, CAAF decided Mangahas.

In Mangahas, CAAF reversed 20 years of precedent and reinterpreted the statute of limitations for rape of an adult. CAAF had previously held that under the UCMJ, rape qualified as an offense punishable by death and so was exempt from the 5-year statute of limitations in effect prior to a 2006 amendment that extended the statute of limitations for rape indefinitely. But in Mangahas CAAF clarified that rape (without aggravating factors) is not constitutionally punishable by death and so the statute of limitations was five years (until it was changed in 2006). CAAF’s decision in Mangahas resulted in the dismissal of a then-pending rape charge for conduct alleged to have occurred in 1997, and it also led the Air Force CCA to reverse a 2017 conviction for a rape alleged to have occurred in 2000, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here).

While Mangahas, Collins, and Briggs are all Air Force cases, that is not the only service to use military law to prosecute decades-old allegations of sexual assault. The Army, for example, dismissed such charges against a retired two-star general earlier this year in the wake of Mangahas.

Briggs presents questions that are closely-related to the Mangahas decision: whether the extension of the statute of limitations enacted in 2006 applies to conduct alleged to have occurred before the enactment of the 2006 change, and how to address that issue when the defense fails to raise it at trial.

Congress explicitly eliminated the statute of limitations for rape when it amended Article 43(a) in 2006. Such changes can be retroactive, but only in cases where the prior statute of limitations had not yet expired at the time of the change (because otherwise the change violates the prohibition against ex post facto laws). So, for example, in Mangahas, where the rape was alleged to have occurred in 1997, more than five years passed between the alleged offense and the change and so the new statute of limitations could not be applied retroactively. But in Briggs only one year passed, and so the change might be applied retroactively (if that is what Congress intended).

There is, however, a presumption against retroactive application of changes in the statute of limitations, and CAAF’s precedent requires that there be clear evidence that Congress intended such retroactive application:

extensions can only apply to conduct pre-dating their enactment if there is clear evidence of congressional intent to produce such a retroactive effect. Lopez de Victoria, 66 M.J. at 73–74; see also United States v. Habig, 390 U.S. 222, 227 (1968) (“[C]riminal limitations statutes are ‘to be liberally interpreted in favor of repose.’” (quoting United States v. Scharton, 285 U.S. 518, 522 (1932))).

App. Br. at 7. Briggs’ argument is that “the 2006 amendment to Article 43 is silent as to whether it applies retroactively. . . . [accordingly,] the presumption against retroactive application of statutes and the rule of lenity would compel the same conclusion—that the 2006 amendment does not apply retroactively.” App. Br. at 7.

But Briggs also must contend with the fact that his defense counsel failed to raise the issue at trial. The Supreme Court held, in Musacchio v. United States, 136 S. Ct. 709 (2016), that a statute of limitations defense is generally lost if not raised at trial. But in Collins the Air Force CCA observed that a military judge has an affirmative duty under R.C.M. 907(b)(2)(B) to raise any applicable statute of limitations, and so it found that the issue is not waived by the failure to raise it at trial (in Mangahas the defense raised the statute of limitations issue at trial; CAAF’s review was interlocutory in connection with a prosecution appeal of a different issue). Briggs distinguishes his case from Musacchio on the basis of R.C.M. 907(b)(2)(B) and also based on Mangahas:

unlike in Musacchio, the trial judge here was bound by Rule 907(b)(2)(B) of the Rules for Courts-Martial, which imposes an affirmative obligation on the judge to correctly instruct the accused as to the statute of limitations in his case. . . .

[A]lso unlike in Musacchio, what was a meritless statute-of-limitations objection at trial in Appellant’s case became a meritorious one on appeal—thanks to an intervening change in the governing law. In those circumstances, as the Supreme Court has expressly held, a criminal defendant is entitled at the very least to plain error review, since he can hardly be blamed for failing to prophesy that an appellate court would overrule one of its earlier rulings.

App. Br. at 8.

The Air Force Government Appellate Division’s response asserts that Congress intended the 2006 amendment to the statute of limitations to apply retroactively, arguing that “congressional silence on an issue is not always indicative of congressional intent.” Gov’t Div. Br. at 14 (quoting United States v. Buchanan, 638 F.3d 448, 456 (4th Cir. 2011)). It posits that:

After considering the practical effect of the passage of the 2006 amendment, its contemporary legal context, as well as its legislative history, there can be no reasonable dispute that Congress intended that the 2006 amendment would apply to rape crimes committed before its enactment, for which there already was an unlimited statute of limitations under Willenbring.

Gov’t Div. Br. at 15. The Government Division’s argument is that “Congress, in passing the 2006 amendment, intended not to change the law, but rather to codify the holding of Willenbring and clarify the correct statute of limitations for rape.” Gov’t Div. Br. at 18 (formatting and emphases in original). That argument, however, appears to be based solely on inferences drawn from the circumstances of the change, and not on any specific Congressional declaration or enactment. Those inferences include that:

At the time it was passed, the amendment did not actually change the statute of limitations and therefore did not attach a new legal consequence to Appellant’s crime.

Gov’t Div. Br. at 9. That assumes that CAAF’s pre-Mangahas interpretation of the law was correct. The pre-2006 statute of limitations was considered to be unlimited only because of CAAF’s decision in Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998). Willenbring was reversed in Mangahas. If Mangahas is the correct view of the law and Willenbring was the wrong view, then perhaps Willenbring was always the wrong view and the correct (Mangahas) view of the law was just waiting to be discovered.

As for the failure of Briggs defense counsel to raise the statute of limitations at trial, the Government Division argues:

By its own terms, R.C.M. 907(b)(2)(B) relates only to whether the accused knowingly and intentionally waived the defense. Waiver of the defense will not be recognized if the accused was not properly informed. But, the Rule does not preclude the accused from forfeiting the defense, and it is here that Musacchio applies. Pursuant to Musacchio, whether an accused knowingly waived or accidentally forfeited the statute of limitations defense, the accused’s ultimate failure to assert the defense will always result in a finding of no plain error.

Even if Musacchio is inapplicable to military courts-martial, the appropriate standard of review is plain error. Under a plain error analysis, the military judge could not have committed plain error by failing to inform Appellant that he could raise the statute of limitations in bar of trial, because the question of which statute of limitations applies to Appellant’s 2005 crime is currently unsettled.

Gov’t Div. Br. at 10 (emphases in original).

Briggs takes aim at that argument in a reply brief:

This should not be a difficult case. Like every other appellate court in this country, “on direct review, [this Court] appl[ies] the clear law at the time of the appeal, not the time of trial.” United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010) (citing United States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F. 2008)). This cardinal principle of appellate procedure dates back to the Founding. As Chief Justice Marshall explained in one of his first opinions for the Supreme Court,

if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. . . . In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.

United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801). The “clear law” at the time of Appellant’s direct appeal includes this Court’s decisions in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). . .

Reply Br. at 1-2.

Case Links:
AFCCA opinion
Blog post: SCOTUS remands
Blog post: CAAF grants
Appellant’s brief
Appelllee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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