CAAF decided the Air Force case of United States v. Briggs, __ M.J. __, No. 16-0711/AF (CAAFlog case page) (link to slip op.), on Friday, February 22, 2019. Applying last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF holds that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive, and that military law requires a military judge to advise an accused on the statute of limitations if it applies. Accordingly, CAAF reverses the appellant’s conviction of rape and dismisses the charge.

Judge Maggs writes for a unanimous court.

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.

At the time of Briggs’ trial, CAAF’s precedent held that there was no statute of limitations for the offense of rape. As a result, Briggs did not raise a statute of limitations defense at trial. On appeal, however, Briggs did raise the issue, but the Air Force CCA refused to consider it because Briggs had not raised it at trial. The CCA affirmed the findings and sentence, and CAAF denied review of Briggs’ claim that he received ineffective assistance of counsel when his defense counsel failed to raise the statute of limitations at trial. But Briggs’ case 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 also serve as an assigned judge of the Court of Military Commission Review. And while SCOTUS was considering Ortiz, CAAF decided Mangahas.

Mangahas reversed 20 years of precedent and reinterpreted the statute of limitations for rape of an adult, clarifying that rape (without aggravating factors) is not constitutionally punishable by death and so the statute of limitations was just five years (until Congress changed the law 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).

CAAF’s decision in Mangahas gave life to the the statute of limitations issue in Briggs, and SCOTUS remanded the case for review in light of Mangahas. CAAF then agreed to consider two issues:

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 today’s decision CAAF holds that the 2006 change to the statute of limitations (Article 43) does not apply retroactively, meaning that the statute of limitations applicable in Briggs’ case is just five years. CAAF also holds that a statute of limitations defense can be raised for the first time on appeal, though when that happens the issue is tested for plain error. But because plain error applies the law as it exists at the time of the appeal (and not as it existed at the time of trial), Magahas makes the error plain and Briggs’ conviction is reversed.

Judge Maggs’ opinion outlines the arguments of Briggs and the Air Force Government Appellate Division as follows:

In light of our decision in Mangahas, the parties agree that the version of Article 43, UCMJ, that existed at the time of Appellant’s charged offense in 2005 established a five-year period of limitations. They further agree that, if Congress had not amended Article 43, UCMJ, in 2006, the period of limitations would have run in 2010, long before the charges in this case were received by the convening authority in 2014. What they disagree about is whether the 2006 amendment to Article 43, UCMJ, applies retroactively to a rape that occurred in 2005, thereby eliminating the statute of limitations for that offense. In other words, if the 2006 amendment does not apply retroactively, the finding of guilt in this case should be set aside and the charge and specification of this case should be dismissed. But if the 2006 amendment does apply retroactively, the conviction may stand.

Slip op. at 5-6.

Whether the 2006 change is retroactive to Briggs’ alleged misconduct in 2005 depends on the language Congress used, with Judge Maggs explaining that CAAF “generally appl[ies] the statute of limitations that was in effect at the time of the offense,” and it “generally presume[s] that subsequent amendments [to the statute] do not apply [retroactively],” because the Supreme Court “has instructed that congressional enactments will not be construed to have retroactive effect unless their language requires this result.” Slip op. at 6 (marks omitted). The 2006 change to Article 43 lacks such language:

we see nothing in the text of the 2006 amendment that indicates that the amendment should have a retroactive effect.

Slip op. at 7. The legislative history also lacks any indication that Congress intended a retroactive change:

we see nothing that indicates any intention for the 2006 amendment to apply retroactively. . . . No version of this bill as it worked its way through the House and Senate contained any provision indicating that the amendment would apply retroactively. The discussions of the amendment in the House Report and the Conference Report also say nothing about retroactivity.

Slip op. at 8 (citations omitted).

Nevertheless, the Government Division argued that Congress knew about CAAF’s precedent (that in 2006 said there was no statute of limitations for rape) and that it intended to codify that precedent. CAAF rejects that argument for two reasons:

First, the 2006 amendment to Article 43(a), UCMJ, was not limited to rape; it also eliminated the previous five-year period of limitations for unpremeditated murder. Congress therefore did not intend the 2006 amendment simply to maintain the status quo. Second, even if Congress believed that the amendment was codifying existing law with respect to the statute of limitations for rape, that belief alone would not imply that Congress intended for the amendment to apply retroactively. In such circumstances, Congress would have had no reason to consider the issue of retroactivity. And if Congress did not actually decide to make the statute apply retroactively, then the presumption of non-retroactivity should control.

Slip op. at 8-9. In other words, codifying a precedent and retroactively extending a statute of limitations are not the same thing.

Having determined that the 2006 change is not retroactive, Judge Maggs then turns to the fact that the issue was not raised at trial, beginning with Rule for Courts-Martial 907(b)(2)(B):

R.C.M. 907(b)(2)(B) addresses the procedure for asserting the statute of limitations. It provides:

A charge or specification shall be dismissed upon motion made by the accused before the final ad-journment of the court-martial in that case if: . . . .

(B) The statute of limitations (Article 43) has run, provided that, if it appears that the accused is unaware of the right to assert the statute of limitations in bar of trial, the military judge shall inform the accused of this right . . . .

Slip op. at 10. The requirement in that rule that the military judge must inform the accused of the statute of limitations if it applies distinguishes courts-martial from the civil courts (where the Supreme Court has held that the failure to raise a statute of limitations defense at trial means that it isn’t part of the case and so there is no error to correct):

We think that cases under the Rules for Courts-Martial are distinguishable. As indicated above, R.C.M. 907(b)(2)(B) requires the military judge to inform the accused of the right to assert the statute of limitations. The Federal Rules of Criminal Procedure have no analogous provision. Accordingly, in a court-martial, R.C.M. 907(b)(2)(B) makes the statute of limitations “part of a case” whenever the accused has a statute of limitations defense and does not appear to know it. We therefore can review Appellant’s failure to raise the statute of limitations for plain error.

Slip op. at 11. That error exists because of Mangahas:

Plain error is assessed at the time of appeal. Our decision in Mangahas has now established that the period of limitations for a rape committed in 2005 was five years. Accordingly, it was clear and obvious error—at least as assessed in hindsight on appeal, entertaining the fiction that Mangahas had been decided at the time of Appellant’s court-martial—for the military judge not to inform Appellant of the five-year period of limitation when the sworn charges against him were received by the summary court-martial convening authority in 2014.

This clear and obvious error warrants relief. . .

Slip op. at 12. The relief is reversal of Briggs’ conviction and dismissal of the charge.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

21 Responses to “Opinion Analysis: The 2006 amendment to the statute of limitations for rape was not retroactive and can be raised for the first time on appeal, in United States v. Briggs”

  1. John Marshall says:

    Seems like this makes the certified issue in Collins a slum dunk.  If I were Collins’ counsel, I’d be asking the court to summarily dispose of his case if he is still in confinement….

  2. Allan says:

    So, what happens now?  Reinstatement, backpay, maybe promotion to O-6, and retirement?  And then tried for rape by the State of Colorado?

  3. slyjackalope says:

    Another obviously guilty dirtbag rapist gets away with it because of a stupid policy decision that has nothing to do with the facts of the case.  Repeal these ridiculous, arbitrary statutes of limitations and replace them with equitable limitations based on the facts of the case and fairness to the accused!

  4. stewie says:

    I mean if he is now no longer guilty then theoretically he is put back to where he was, and you can’t take an officer’s vested retirement away via administrative action so yeah, retirement is pretty likely. Not so sure about promotion. Back pay is trickier, finance can require something showing an actual acquittal vice simply the conviction going away, even if there is no chance of retrial.

  5. Cloudesley Shovell says:

    Hello slyjackalope:
    Yours is a fascinatingly vague policy proposal that runs counter to long-established federal and state law regarding statutes of limitation. 
    Do you have a specific proposal?  Care to share proposed statutory language?
    Also, are you really suggesting that the limitations period for a particular criminal allegation should really vary based upon the particular facts of each individual allegation?  How would that work?  Have you considered the possibility of any equal protection, due process, or other constitutional limitations to such a scheme? 
    Kind regards,

  6. Zachary D Spilman says:

    you can’t take an officer’s vested retirement away via administrative action

    That’s wrong in many ways, starting with the fact that an active component officer’s retirement doesn’t vest – in any meaningful sense of the word – until the officer has completed 40 years of service. Compare 10 U.S.C. § 9324 (Air Force officer with 40 years service “shall be retired upon his request”), with 10 U.S.C. § 9318 (officer with 30 years service “may be retired upon his request”), and 10 U.S.C. § 9311 (Secretary of the Air Force “may, upon the officer’s request, retire” officer with 20 years service).

    Eligibility for retirement and entitlement to retirement are not the same thing.

  7. stewie says:

    Nope, it’s wrong in exactly zero ways.
    I said, you cannot take away an officer’s VESTED retirement via administrative action. The relevant US Code is none of the ones you cited but is instead:
    10 USC 1186:
    (b) An officer removed from active duty under section 1184 of this title shall
    (1) if eligible for voluntary retirement under any provision of law on the date of such removal, be retired in the grade and with the retired pay for which he would be eligible if retired under such provision;
    Section 1184 deals with Boards of Inquiry and a removal of an Officer.
    The word voluntary being pretty important…and it being the same for all services…20 years of active federal service
    So, if you do a BOI for an Officer with 20 or more years of service, for the purposes of that BOI, his retirement has vested, and if he is separated by the BOI, the end result is going to be retirement.
    Now, a Grade Determination Review Board can certainly lower the retirement rank based on the misconduct that led to the BOI.

  8. stewie says:

    Nope, it’s wrong in exactly zero ways.
    I said, you cannot take away an officer’s VESTED retirement via administrative action. The relevant US Code is none of the ones you cited but is instead:
    10 USC 1186:
    (b) An officer removed from active duty under section 1184 of this title shall—
    (1) if eligible for voluntary retirement under any provision of law on the date of such removal, be retired in the grade and with the retired pay for which he would be eligible if retired under such provision;
    Section 1184 deals with Boards of Inquiry and a removal of an Officer.
    The word voluntary being pretty important…and it being the same for all services…20 years of active federal service
    So, if you do a BOI for an Officer with 20 or more years of service, for the purposes of that BOI, his retirement has vested, and if he is separated by the BOI, the end result is going to be retirement.
    Now, a Grade Determination Review Board can certainly lower the retirement rank based on the misconduct that led to the BOI.

  9. slyjackalope says:

    Hello CS,
    Check out Wyoming.  No criminal statute of limitations.  6th Amendment speedy trial right obviously applies.  That’s good enough for me, but if you need some additional limit, put more teeth into the Barker v. Wingo factors.
    Arbitrary limits on prosecution are unjust and erode public confidence in our system.  If one is afraid of getting prosecuted 20 years from now, how about not committing the crime.

  10. stewie says:

    “Arbitrary limits on prosecution are unjust and erode public confidence in our system.”
    How’s that, other than you saying so? Done any studies or surveys showing public confidence is eroded because of something that’s been a part of our criminal justice system pretty much from the beginning? Something that almost every country has? A concept that goes back centuries? Heck the concept goes back to ancient Rome and Greece.
    I’m also perplexed by why you are pro-speedy trial but anti-statute of limitations. Particularly since they both address similar issues and concerns, and the latter requires WAY more time to pass than the former does.

  11. slyjackalope says:

    Stewie is right for once.  The only ones at risk of losing their retirement administratively after 20 years is active duty enlisted.  In the Army, the separation authority for active duty enlisted who are 18+ years is the ASA (M&RA).  I’ve only personally seen that happen once.

  12. slyjackalope says:

    How about this, Stewie?  How about you explain how it’s just that a serious crime could result in a life sentence or worse one day, but the following day results in no punishment whatsoever?  How do you reconcile as just and fair the giant goat rodeo that is the statutes of limitation among the states?  They are completely arbitrary and the various lists of years and offenses make no logical sense.
    Want to know whether members of the public are appalled by this stupidity?  Ask the victim of this latest mess for starters and see what she thinks.
    Ancient Rome and Greece?  Yeah, those we’re really just and fair systems.  We should just do what they did.
    Pro-speedy trial = balancing the interests of society with fairness to the accused.  Anti-statute of limitations = not shooting ourselves in the foot.  There was nothing unfair about convicting this latest turd for sexually assaulting someone, but he now gets away with it scott free for what good reason again?

  13. stewie says:

    Probably the same way I explain why giving alcohol to someone one day is a crime, and the next day is legal.
    Or how I explain how having sex with someone one day is a crime, and the next day is legal.
    Yes, victims of crimes (or accused for that matter) are the neutral and objective arbiters we should be looking to.
    So, if there’s 121 days from preferral to trial, you are all for dismissal, but if there is 40 years from commission of the crime to trial…well, that’s just crazy talk. Have I got it right?

  14. slyjackalope says:

    No Stewie, you’ve reverted back to your usual self and got it wrong again.  I had such high hopes for you.
    New laws get enacted all the time and there has to be a date when they start applying so people have fair notice of what they aren’t allowed to do anymore.  Protection from Ex Post Facto laws is a constitutional right.  Are you saying that statutes of limitation protect the criminal’s “right” not to be prosecuted as long as they can avoid detection long enough?
    I said nothing about 121 days and that’s exactly what I’m now saying is another unnecessary, arbitrary limit that has become such a joke that SJAs get around all the time.  There was no mention of 121 days (or any other arbitrary limit) in Barker v. Wingo for a good reason: an equitable balancing test is always going to be fact-specific.  Sometimes the accused is happy to sit in jail, hoping the case goes bad for the Government, and shouldn’t be rewarded for that.  Other times the accused is seriously handicapped by spoliation of evidence when the Government unreasonably delays even for a relatively short period of time.  That’s when a just and fair system lets a potentially guilty person go free so we have confidence that the accused in every case had the ability to defend himself.  Fairness in this regard has nothing to do with day 120 vs 121.

  15. Zachary D Spilman says:

    You’re absolutely right, stewie, that an officer eligible for retirement gets a retirement grade determination and retirement (at whatever grade the officer last served satisfactorily; a slippery term to be sure), rather than an involuntary separation after a board of inquiry.

    But a board of inquiry and a court-martial aren’t the only ways to separate officers. See 10 U.S.C. § 1161(b).

    I abhor the term vested when discussing military retirement because vested is synonymous with owned and military retirement simply doesn’t work that way. Vesting applies to the TSP (which is a 401(k) plan) but not to retired pay.

  16. Cloudesley Shovell says:

    Thanks for the clarification.  It was not clear in your original comment that you just want to do away with statutes of limitation entirely (at least for criminal cases) and rely entirely on the guarantee of a speedy trial.
    Doing so of course introduces its own problems of arbitrariness and perceptions of unfairness.  What of one accused who has the good fortune of having a key adverse witness drop dead, when the next accused has no such luck?  In a military specific scenario, what of the accused who’s enlistment expires and is discharged the day before he’s identified, while his co-conspirator is still on active duty?  It’s a whack-a-mole game, you know.  No matter what, somebody is going to be able to point and complain about arbitrariness or some injustice, real or perceived.  People kill other people every day, yet are never criminally charged, even though they’re known to all, because not all killings are criminal.  Prominent people get away with criminal misconduct that would land an everyday peon in prison.  Unfair?  Sure.  But it has always been thus, and always will be.  Prosecutors and police exercise discretion every day, sometimes for very arbitrary reasons, even for serious crimes.  Unfair? Unjust? 
    I would imagine you disagree, but there is a societal benefit to statutes of limitation, and they do indeed go back to ancient Greece, as Stewie pointed out.  Wrongs happen to people every day, across a broad spectrum of conduct, from minor breaches of manners, to civil torts, minor and major, to criminal acts, minor and major.  Most of these wrongful acts (yes, most! even crimes) go unpunished.  Wrongdoers of every stripe and degree of culpability escape justice every day.  I would dare say you do, to, on a daily basis.  I’d wager you violate criminal statutes you don’t even know exist.  Yet somehow we make do, and society moves ever onward, lubricated by a large dose of forgive and forget, or at least forget.  The alternative is to let things fester, to throw salt in the wound, to let the resentment seethe.  That’s no way for either an individual or a society to function in a healthy manner.
    I note you also complained of the “giant rodeo” of differing statutes of limitation in the several States.  So?  What of the “giant rodeo” of different criminal laws?  Each state is its own sovereign.  Why the call for absolute uniformity?  Are you not a fan of our federal system?  For that matter, why not absolute uniformity across the North American continent?  Why should something be a crime north of the 49th parallel but not south of it?  Why should it matter what side of the Rio Grande one is standing?  Heck, why stop there?  Why not one world criminal code? 
    Kind regards,

  17. stewie says:

    C’mon Zach. Just admit you were wrong. You listed things like someone being AWOL and DFR, or someone convicted in a civilian court. You know very well no one is talking about those exceedingly rare things when they say administrative discharge. They are talking about a BOI. You’re dislike of the word “vested” is irrelevant.
    For the purposes of an admin action, a BOI (which is the only thing that is going to remove THIS Officer), if he has 20 years, his retirement has in FACT, vested. He can’t lose it. He WILL receive it, unless he is court-martialed for something else and receives a dismissal which is exceedingly unlikely to happen in the tiny gap of time it will take this dude to file his retirement papers and get out as quickly as possible.
    It shouldn’t be this way, by the way. If an enlisted person can lose their retirement via separation board, then officers should face the same possibility (and both should require SecArmy decision), but it is.
    Sky, go ahead and find me a speedy trial case that you think is fair and reasonably decided under Barker v. Wingo, and then tell me how that shorter period is ok, while the longer period of the shortest SOL (usually 5 years) is not ok. SOL place GREATER time spans than speedy trial does. Your theoretical victim would feel MORE unjust with a case dismissed by speedy trial vice SOL. Evidence would be LESS spoiled by a speedy trial violation than the shortest SOL dismissal.
    Right now your thought process goes to about the depth of a quark…try to at least reach atomic levels.

  18. slyjackalope says:

    How do statutes of limitation help any of the potential problems you noted that aren’t solved by the exercise of discretion by the prosecutor?  If a case is too old, evidence is lousy, or it’s just not worth the effort, that’s why we elect / appoint prosecutors to make decisions.  I fail to see how an arbitrary limit helps any of those problems, with the present case being an excellent example.
    Regarding PVT Snuffy getting off of active duty before he gets caught, that’s a jurisdiction issue.  The Constitution is the supreme law of the land and there are necessarily limits to the Government’s power.  However, statutes of limitation are not jurisdictional and may be waived.
    People get away with things that they shouldn’t, no doubt.  Let’s say for argument sake that there’s 1,000 different reasons why someone would get away with something that is outside of the prosecutor’s control.  Why would we want to create reason 1,001 when it’s not necessary to the interests of justice, doesn’t allow for prosecutorial discretion, denies what otherwise would be a just and fair outcome to the victims, and is subject to the whim of politics on any particular day in the respective legislature?  If statutes of limitation are such a good idea, why is it lately that many legislatures are increasing the number of offenses that aren’t subject to them, lengthening the period in which individuals may be prosecuted, and creating exceptions (ex. “tolling”) so they don’t apply in some cases?  Could it be because people are sick of criminals unnecessarily getting away with crimes because of some lofty ideals created by lawyers?
    Statutes of limitation might (and I emphasize might) have been a good idea back in the day when we didn’t have a lot of physical evidence to help the trier of fact make a just decision.  Memories fade and witnesses die off of course.  However, any possible usefulness they may have had in the past is no longer the case on our modern society where technology provides a lot of the evidence we use to prosecute criminals.  The present case was a slam dunk because the turd was stupid enough to admit what he did while the victim was recording it.
    Regarding the giant goat rodeo of statutes among the states, I’m definitely a big fan of federalism and it’s up to the states to be as stupid as they want to be, subject to constitutional limits.  I gave this example to show that for a policy decision that most states have decided to implement, there is such a hodgepodge of offenses, statutory periods, exceptions, and the like that one wonders how the various legislatures made these decisions absent pure arbitrariness.  The states are free to limit their criminal justice systems, but they do so at the risk of letting guilty people go free unnecessarily.

  19. slyjackalope says:

    That’s a stupid argument and you know it (or you should, I always wonder about you).  They kept Barker in suspense for over 5 years while they tried to get his fellow turd convicted multiple times so he would flip on Barker.  The Supremes said that was fine under the circumstances because Barker was happy to wait in the hopes that his case would disappear.  It was a murder case so there was no statute of limitation (further validating my point that statutes of limitation are unnecessary), leaving the state free to take its merry sweet time to develop a stronger case as long as Barker was happy with it as well.
    “SOL place GREATER time spans than speedy trial does.”  Really???  You might want to check the statutes of limitation for misdemeanors or lower grade felonies in many states.  They’re a lot shorter than any potential speedy trial violation could possibly be under most circumstances.  That would be little comfort to the victim of domestic violence who finally decided to come forward years later to keep the abuser from doing it to someone else, or the family of the victim of negligent vehicular homicide when the cops finally figure out who was driving the other car.
    In the present case, speedy trial wasn’t even an issue because the Government didn’t know there was a crime to prosecute until many years after it occurred.  When the victim finally came forward with very solid evidence (the audio recording), that’s when the Government diligently initiated prosecution.  However, the statute of limitation was 5 years, causing an otherwise proper prosecution of a serious crime to be unnecessarily dismissed.  So explain to me how the statute of limitation is always longer than the speedy trial right.

  20. stewie says:

    Sky you are the living embodiment of the Dunning-Kruger Effect.

  21. Vulture says:

    Before we all get our panties in a knot over this, Biggs was sentenced to five months for a rape.  Fiiivvve munths!  For a rape.  And a reprimand then dismissal.  With time and a half that is less than 120 days.  It’s 96 times less than the 40 years stewie proposes.  Maybe the whole retirement and back pay thing may count for more than I am giving it credit.  But an O-5 with a rep for being a rapist isn’t going to be making many friends, any post Commander can keep him out, and there are still the BOI procedures too.
    One of the purposes of the UCMJ was to have a system that worked to the exigencies of the military necessity.  Thank your stars and garters that the idea of a SOL still exists at all.  I am not sure the result would be the same if the sentence was, say, 10 years.
    BTW, I’m with you on this stewie.  But from the point of view of an electrical engineer, up/down/strange/charm/bottom/top are harder to fathom than positive/negative/neutral.