Article 43 of the UCMJ – like federal civil law – contains a baseline five-year statute of limitations. Congress added exceptions in 1986, including an exception for “any offense punishable by death.” At that time, the UCMJ allowed death as the maximum punishment for rape of a female (the statute didn’t protect men until 1992).

But there was a catch: the Supreme Court previously held that death is an unconstitutional punishment for the offense of rape of an adult woman, in Coker v. Georgia, 433 U.S. 584, 598 (1977). Presumably Congress knew that. CAAF certainly did, acknowledging in United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), that “in the absence of aggravating circumstances, [a death sentence] cannot be constitutionally inflicted [for rape of an adult].” Nevertheless, in Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998), CAAF held that “rape is an ‘offense punishable by death’ for purposes of exempting it from the 5-year statute of limitations of Article 43(b)(1),” even if the absence of aggravating factors meant that a particular rape could never actually be punished by death. In other words, even though Congress only exempted offenses punishable by death from the five year statute of limitations, CAAF held that the exemption applied to a rape charge that was not actually punishable by death.

That changed in 2018 with CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page). A unanimous CAAF reversed Willenbring and clarified that “where the death penalty could never be imposed for the offense charged, the offense is not punishable by death for purposes of Article 43, UCMJ.” 77 M.J. at 224-225 (emphases in original). That decision is the #3 Military Justice Story of 2018.

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CAAF decided the interlocutory Air Force case of United States v. Mangahas, 77 M.J. 220, No. 17-0434/AF (CAAFlog case page) (link to slip op.), on Tuesday, February 6, 2018. Answering only the issue specified by the court after oral argument, CAAF holds 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. Accordingly, the decision of the Air Force CCA is reversed and a two-decade old allegation of rape is dismissed.

Judge Ryan writes for a unanimous court.

Mangahas is a lieutenant colonel (O-5) in the Air Force charged with a single specification of rape alleged to have occurred in 1997, when Mangahas was a cadet at the Coast Guard Academy. The alleged victim was a fellow cadet who reported her allegation at the time but did not participate in an investigation. But she made a new report in 2014 (to the Department of Veterans Affairs), a new investigation was initiated, and the charge was preferred in October 2015; eighteen years after the alleged offense.

Mangahas raised numerous objections, including objections based on the statute of limitations and on his due process (Fifth Amendment) right to a speedy trial. The speedy trial motion got traction, and a military judge dismissed the charge with prejudice (meaning Mangahas may never be tried), in part because the passage of time caused the loss of potentially-exculpatory evidence.

But the prosecution appealed, and a three-judge panel of the Air Force CCA reversed the military judge’s dismissal and allowed the trial to proceed. CAAF then ordered a stay of proceedings and granted review of the speedy trial issue:

Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating [Appellant’s] Fifth Amendment Right to a Speedy Trial.

CAAF also heard oral argument on the speedy trial issue. But then it specified a wholly different issue for review and ordered additional briefs:

In light of Coker v. Georgia, 433 U.S. 584, 598 (1977), and United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), was the offense of rape of an adult woman, a violation of Article 120, UCMJ, 10 U.S.C. § 920 (Supp. II 1997), a crime punishable by death within the meaning of Article 43, UCMJ, 10 U.S.C. § 843 (1994).

Article 43 of the UCMJ – like federal civil law – contains a baseline five year statute of limitations. Congress amended Article 43 in 1986 to add exceptions, including an exception for “any offense punishable by death.” Pub. L. 99–661, §805(a). At that time, the UCMJ allowed death as the maximum punishment for rape of a female (the offense wasn’t made gender neutral until 1992), and the prosecution of Mangahas depended on application of that capital exception.

Nine years before Congress added the capital exception to Article 43, however, the Supreme Court held that death is an unconstitutional punishment for the offense of rape of an adult woman in Coker v. Georgia, 433 U.S. 584, 598 (1977). CAAF acknowledged that limitation in United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), remarking that “in the absence of aggravating circumstances, [a death sentence] cannot be constitutionally inflicted [for rape of an adult].” Nevertheless, in Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998), CAAF held that “rape is an ‘offense punishable by death’ for purposes of exempting it from the 5-year statute of limitations of Article 43(b)(1),” regardless of whether there were aggravating factors that would make death a constitutionally-permissible punishment.

Now CAAF reverses Willenbring and its progeny, concluding that “where the death penalty could never be imposed for the offense charged, the offense is not punishable by death for purposes of Article 43, UCMJ.” Slip op. at 8 (emphases in original).

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CAAF heard oral argument in the interlocutory Air Force case of United States v. Mangahas, No. 17-0434/AF (CAAFlog case page), on October 11. The court granted review after the Air Force CCA reversed the military judge’s ruling that dismissed the charge of rape – alleged to have occurred in 1997 – with prejudice. The military judge found a violation of the accused’s Fifth Amendment (due process) right to a speedy trial based on the 18-year delay in charging the accused and the death of a witness.

During the oral argument there were a few questions about the statute of limitations, which is either five years or unlimited depending on whether death was an authorized punishment for rape in 1997.

In an order issued yesterday, CAAF requested briefing on the applicable statute of limitations:

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On further consideration of the record, it is ordered that the parties shall brief the following issue specified by the Court:

IN LIGHT OF COKER V. GEORGIA, 433 U.S. 584, 598 (1977), AND UNITED STATES V. HICKSON, 22 M.J. 146, 154 n.10 (C.M.A. 1986), WAS THE OFFENSE OF RAPE OF AN ADULT WOMAN, A VIOLATION OF ARTICLE 120, UCMJ, 10 U.S.C. § 920 (SUPP. II 1997), A CRIME PUNISHABLE BY DEATH WITHIN THE MEANING OF ARTICLE 43, UCMJ, 10 U.S.C. § 843 (1994)?

The parties will brief this issue contemporaneously, and file their briefs on or before November 14, 2017. Reply briefs on this issue may be filed on or before November 27, 2017.

Footnote 10 in Hickson read, in significant part:

The Uniform Code and many state penal codes authorize death sentences for rape; but in the absence of aggravating circumstances, such punishment cannot be constitutionally inflicted. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

We discussed this issue back in 2012, in this post. That was something of a follow-up to this post, where Dwight Sullivan reported that the Supreme Court overlooked the UCMJ when it reviewed the law governing the maximum sentence for rape of a child in Kennedy v. Louisiana, 554 U.S. 407 (2008). That post was picked up by the New York Times, and prompted petitions for a rehearing in the case (that was ultimately denied).

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Mangahas, No. 17-0434/AF (CAAFlog case page): Oral argument audio.

United States v. Pugh, No. 17-0306/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the interlocutory Air Force case of United States v. Mangahas, No. 17-0434/AF (CAAFlog case page), on Wednesday, October 11, 2017, at 9:30 a.m. Mangahas is a lieutenant colonel in the Air Force charged with a single specification of rape alleged to have occurred in 1997, when Mangahas was a cadet at the Coast Guard Academy. The alleged victim was a fellow cadet who reported her allegation at the time but did not participate in an investigation. However, she made a new report in 2014 (to the Department of Veterans Affairs), a new investigation was initiated, and the charge was preferred in October 2015; eighteen years after the alleged offense.

The passage of so much time prompted a defense motion to dismiss based on violation of Mangahas’ Fifth Amendment (due process) right to a speedy trial. The Due Process Clause of the Fifth Amendment applies to egregious or intentional tactical pretrial delay by the prosecution where there is actual prejudice to the accused. See United States v. Reed, 41 M.J. 449, 452 (C.A.A.F. 1995). This is a difficult burden for an accused to meet.

A military judge, however, found both: egregious delay in the nearly two decades between the time the alleged victim made a report and the time Mangahas was brought to trial, and prejudice in the death of a Coast Guard Academy counselor – identified by the initials PM –  who the alleged victim claims discouraged her from participating in the investigation back in 1997. Then, because this violated the Due Process Clause, the military judge dismissed the charge with prejudice (meaning Mangahas may never be tried).

The prosecution appealed and a three-judge panel of the Air Force CCA reversed, finding that “the actual substance of what PM’s trial testimony would be is speculative,” and that “even assuming that PM were to directly rebut [the alleged victim], the absence of that testimony, as discussed above, does not deny Appellee the ability to mount an effective defense.” United States v. Mangahas, Misc. Dkt. No. 2016-10, slip op at 11-12 (A.F. Ct. Crim. App. Ap. 4., 2017) (discussed here). Mangahas then appealed to CAAF, and the court granted review of a single issue:

Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating LtCol Mangahas’ Fifth Amendment right to a speedy trial.

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CAAF docketed two new cases on Monday.

First, the Judge Advocate General of the Navy certified Hale, which I discussed here. The NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The JAG wants CAAF to review the legal test employed by the CCA:

No. 17-0537/MC. United States, Appellant v. James A. Hale, Appellee. CCA 201600015. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHAT IS THE CORRECT TEST WHEN ANALYZING AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED UPON A CONFLICT OF INTEREST NOT INVOLVING MULTIPLE REPRESENTATION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 30th day of August, 2017.

The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” Slip op. at 13 (emphasis added).

Second, CAAF granted review in Mangahas, which I previously discussed here. The Air Force CCA granted a Government appeal and reversed a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment. CAAF will review the CCA’s decision:

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHEN THE GOVERNMENT WAS INACTIVE FOR OVER 17 YEARS BEFORE INVESTIGATING A CLAIM OF RAPE, VIOLATING LTCOL MANGAHAS’ FIFTH AMENDMENT RIGHT TO A SPEEDY TRIAL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

In United States v. Mangahas, Misc. Dkt. No. 2016-10 (A.F. Ct. Crim. App. Ap. 4., 2017) (link to slip op.), a three judge panel of the Air Force CCA grants a Government appeal and reverses a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment.

The allegation dates back to February 1997, when the accused and the alleged victim were cadets at the United States Coast Guard Academy. The charges were preferred eighteen years later, in October 2015.

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