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.