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
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.
• 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