Top Ten Military Justice Stories of 2019 – #2: The Supreme Court grants certiorari in Briggs, Collins, and Daniels (the Mangahas trailers)
In 2018, CAAF held that the statute of limitations for the offense of rape of an adult occurring between 1986 and 2006 was just five years. That decision, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018), was an unexpected change to what was previously well-settled law.
CAAF revisited the topic in 2019, applying its decision in Mangahas (which involved an ongoing prosecution of an allegation dating to 1997) to three cases with convictions that violated the newly-clarified statute of limitations. The cases were United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page); United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (sum. disp.) (CAAFlog case page); and United States v. Daniels, 79 M.J. 150 (C.A.A.F. Jul. 22, 2019) (sum. disp.) (noted here). CAAF heard oral argument and issued an authored opinion in only one of the cases (Briggs); it summarily applied that decision to the other two cases.
Briggs was convicted in 2014 of a single specification of rape for an encounter that occurred nine years earlier, in 2005. Briggs’ defense counsel did not raise the statute of limitations at trial, but his case was pending action by the Supreme Court (as an Ortiz trailer) when CAAF decided Mangahas, and the Court remanded Briggs to CAAF for further review in light of Mangahas. CAAF then granted review of an issue that questioned whether the 2006 change to Article 43(a) (that explicitly eliminated the statute of limitations for rape) applied retroactively to allegations that occurred within the prior five years (the limit of the statute as reinterpreted by Mangahas).
A unanimous CAAF held that the 2006 change was not retroactive because it lacked language indicating that Congress intended such effect. It also held that an accused may raise the statute of limitations for the first time on appeal. Accordingly, the prosecution of Briggs was time-barred, and CAAF reversed the conviction.
CAAF’s summary dispositions in Collins and Daniels followed soon after, though the situation in those cases was different. While the conduct at issue in Briggs occurred just one year before Congress changed the statute of limitations in 2006, the conduct at issue in Collins and Daniels occurred in 2000 and 1998, respectively. That meant that the five-year statute of limitations (as reinterpreted in Mangahas) expired before Congress changed the law. Once a statute of limitations expires, the Constitutional prohibition on ex post facto laws prohibits reviving it. Considering that, and applying Mangahas, the Air Force CCA had reversed the convictions in both Collins and Daniels, and the Judge Advocate General of the Air Force had certified both cases to CAAF. CAAF summary dispositions affirmed the decisions of the Air Force CCA.
After CAAF decided Briggs, the Solicitor General received additional time to petition the Supreme Court for certiroari. That petition eventually came, on July 22, 2019, presenting the following question that challenges not only CAAF’s decision in Briggs, but also CAAF’s underlying decision in Mangahas that the statute of limitations for the offense of rape of an adult occurring between 1986 and 2006 was just five years:
Whether the Court of Appeals for the Armed Forces erred in concluding—contrary to its own longstanding precedent—that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
Soon afterward the Solicitor General also petitioned for certiorari in Collins and Daniels, raising the same issue.
That grant is the #2 Military Justice Story of 2019.
Briggs is the second military case to win a grant of certiorari in three years. The other was Ortiz v, United States, 138 S. Ct. 2165 (2018), which was also a consolidated case. The grant was the #2 Military Justice Story of 2017 and the Court’s decision was the #1 Military Justice Story of 2018. Ortiz, however, involved petitions filed by servicemembers. The last time the Solicitor General obtained certiorari in a military justice case was more than a decade ago, in 2008, in United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).
The current due date for the Solicitor General’s merits brief in Briggs is January 6, 2020.