Audio of today’s oral arguments at CAAF is available at the following links:
Argument Preview: Is the 2006 change to the statute of limitations for rape retroactive, in United States v. Briggs
CAAF will hear oral argument in the Air Force case of United States v. Briggs, No. 16-0711/AF (CAAFlog case page), on Tuesday, December 4, 2018, after the argument in Cooper. The case was remanded to CAAF by the Supreme Court in August for review in light of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), which reinterpreted the statute of limitations for the offense of rape of an adult. CAAF will consider two issues involving the application of the new rule in this case:
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 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.
The Air Force CCA affirmed the findings and sentence in 2016. The case then 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 properly also serve as an assigned judge of the Court of Military Commission Review. Prior to the Court deciding Ortiz, however, CAAF decided Mangahas.
In Mangahas, CAAF reversed 20 years of precedent and reinterpreted the statute of limitations for rape of an adult. CAAF had previously held that under the UCMJ, rape qualified as an offense punishable by death and so was exempt from the 5-year statute of limitations in effect prior to a 2006 amendment that extended the statute of limitations for rape indefinitely. But in Mangahas CAAF clarified that rape (without aggravating factors) is not constitutionally punishable by death and so the statute of limitations was five years (until it was changed 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).
While Mangahas, Collins, and Briggs are all Air Force cases, that is not the only service to use military law to prosecute decades-old allegations of sexual assault. The Army, for example, dismissed such charges against a retired two-star general earlier this year in the wake of Mangahas.
Briggs presents questions that are closely-related to the Mangahas decision: whether the extension of the statute of limitations enacted in 2006 applies to conduct alleged to have occurred before the enactment of the 2006 change, and how to address that issue when the defense fails to raise it at trial.
Earlier this month – in an action noted here – SCOTUS remanded the case of Air Force Lieutenant Colonel Michael Briggs, who was convicted of rape in 2014 for an offense that allegedly occurred in 2005. We noted the conviction in this post. The Air Force CCA affirmed in 2016 (link to slip op.). CAAF summarily affirmed in May, 2017.
The Court remanded the case for CAAF to consider it in light of United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), in which CAAF reinterpreted the statute of limitations for the offense of rape of an adult.
Yesterday CAAF issued an order agreeing to do that, and more:
No. 16-0711/AF. U.S. v. Michael J.D. Briggs. CCA 38730. On further consideration in light of the remand from the Supreme Court of the United States, it is ordered that the above-entitled case is granted review on the following 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?
Briefs will be filed under Rule 25.
Back in June, SCOTUS found no problem with concurrent service of appellate military judges on both a Court of Criminal Appeals (CCAs) and the Court of Military Commission Review (CMCR), in Ortiz v. United States, 585 U.S. __, No. 16-1423 (CAAFlog case page).
There were many trailer cases, including 167 court-martial appeals combined under Abdirahman, et al. v. United States, No. 17-206. One of those 167 appeals involved Air Force Lieutenant Colonel Michael Briggs, who was convicted of rape in 2014 for an offense that allegedly occurred in 2005. We noted the conviction in this post. The Air Force CCA affirmed in 2016 (link to slip op.). CAAF summarily affirmed in May, 2017.
But then CAAF decided United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), re-interpreting the statute of limitations for the offense of rape of an adult. Briggs promptly filed a supplemental brief (noted here) with SCOTUS seeing reversal on the separate basis that the military appellate courts should review his conviction in light of Mangahas. The Solicitor General filed a response (noted here) that did not oppose remand to CAAF for that review.
In today’s order list, SCOTUS granted that review:
17-243 ABDIRAHMAN, LIBAN H. V. UNITED STATES
The petition for rehearing is granted. The order entered June 28, 2018, denying the petition for a writ of certiorari is vacated as to petitioner Michael Briggs. The petition for a writ of certiorari as to Michael Briggs is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Armed Forces for further consideration in light of United States v. Mangahas, 77 M. J. 220 (2018).
“Thousands of Afghans have been killed or injured by US forces since the invasion, but the victims and their families have little chance of redress. The US military justice system almost always fails to hold its soldiers accountable for unlawful killings and other abuses,” said Richard Bennett, Amnesty International’s Asia Pacific Director.
Corporal Robert Richards, who pleaded guilty to an orders violation and a violation of Article 134 in connection with the Afghanistan urination case, was found dead in his North Carolina home earlier this week. A report from Stars and Stripes is here.
An Air Force fighter pilot was convicted of rape last week, nine years after he committed the crime against a young airman.
Lt. Col. Michael J. Briggs, an F-16 pilot who was the 52nd Fighter Wing chief of safety at Spangdahlem Air Base, Germany, was convicted on Aug. 7, according to Air Force officials, after a weeklong court-martial before a military judge.
The judge sentenced Briggs, 40, to five months in jail, dismissal from the Air Force and a reprimand.
Finally, Stars and Stripes reprints a Colorado Springs Gazette article about allegations that cadet athletes at the Air Force Academy “flouted the sacred honor code by committing sexual assaults, taking drugs, cheating and engaging in other misconduct at wild parties while the service academy focused on winning bowl games and attracting money from alumni and private sources in recent years.”