CAAFlog » October 2018 Term » United States v. Collins

In a petition filed yesterday and available here, the Solicitor General seeks Supreme Court review of CAAF’s summary affirmation of the Air For CCA’s decision in United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page).

The petition in Collins presents the exact same question as the petition filed by the Solicitor General in Briggs (discussed here):

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.

The petition asks the Court to grant certiorari in both cases and consolidate them or briefing, for to hold the petition in Collins pending resolution of Briggs.

Update: The petition also includes CAAF’s summary disposition in United States v. Daniels, No. 19-0345/AF (noted here)

This week at SCOTUS: The Solicitor General applied for and received an extension of time to file a cert. petition in United States v. Collins, No. 18A1257. CAAF summarily affirmed the Air Force CCA’s decision in Collins (noted here) in light of Briggs, and then it granted Collins a writ of habeas corpus (noted here).

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF has completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 27, 2019, at 10 a.m.:

United States v. Bergdahl, No. 20170582

Issues:
I. Whether the President can unlawfully influence—within the meaning of Rule for Courts-Martial 104—a court-martial the President did not personally convene. The parties should be prepared to discuss the references to apparent unlawful influence by the Secretary of the Air Force in United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017).

II. If appellant has offered at least some evidence of unlawful influence, has the government demonstrated—beyond a reasonable doubt—that both (a) the appearance of unlawful influence did not place an intolerable strain on the public’s perception of the military justice system and (b) an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the Convening Authority’s Action? If so, how?

III. If the Convening Authority’s Action was not free from unlawful influence, what—if any—remedy is required?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Last year, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), the Air Force CCA applied CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), to reverse a rape conviction and dismiss the charge. The CCA took that action because – based on Mangahas – the statute of limitations in Collins’ case expired more than ten years before he was charged.

The Judge Advocate General of the Air Force certified the case to CAAF (discussed here), questioning whether Mangahas applies and whether Collins could raise the statute of limitations for the first time on appeal. CAAF answered both of those questions in favor of Collins in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), and last month the court summarily affirmed the Air Force CCA’s decision dismissing the charge (noted here).

The Air Force Government Appellate Division, however, filed a motion asking CAAF to stay its decision. Furthermore, throughout the entire process the Air Force refused to release Collins from confinement (he had been sentenced to confinement for 198 months, total forfeitures, reduction to E-1, and a dishonorable discharge). As a result, last week Collins filed a writ petition at CAAF seeking an order that he be released from confinement.

Today CAAF granted that order:

Upon consideration of Appellant’s motion to stay this Court’s order of March 12, 2019, affirming the decision of the United States Air Force Court of Criminal Appeals or to extend the time to comply with that order, Appellee’s answer, and Appellee’s petition for extraordinary relief in the nature of a writ of mandamus or in the alternative, a writ of habeas corpus, we note that Appellee is still confined despite the sole charge having been dismissed by the lower court. We also note that Appellant has not petitioned for reconsideration of this Court’s order. In that context, and where there is no further action to be taken by the President or the Secretary, the Judge Advocate General of the Air Force “shall instruct the convening authority to take action in accordance with” the decision of the lower court and the order of this Court. Article 67 (e), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(e) (2012). Finally, this Court has jurisdiction to entertain the petition and issue the writ of habeas corpus because the case is before us on direct review and appellate review is not yet complete under Article 57(c)(l)(B)(iii)(I), UCMJ (as amended by the Military Justice Act of 2016, the legislatively designated short title for Division E-Uniform Code of Military Justice Reform of the National Defense Authorization Act for Fiscal Year 2017). National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5302(a), 130 Stat. 2000, 2922-23 (2016) (effective date Jan. 1, 2019). Accordingly, it is, by the Court, this 3rd day of April, 2019,

ORDERED:

That Appellant’s motion to stay or extend time is denied; and Appellee’ s petition for a writ of habeas corpus is granted. All rights, privileges, and property of which Appellee has been deprived are hereby ordered restored. The Judge Advocate General shall direct the immediate release of Appellee from confinement.

On Tuesday CAAF summarily affirmed the Air Force CCA’s decision 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).

No. 19-0052/AF. U.S. v. Richard D. Collins. CCA 39296. On consideration of the three issues certified by the Judge Advocate General of the Air Force, 78 M.J. 190 (C.A.A.F. 2018), the briefs of the parties, and Appellee’s motion to summarily affirm filed on February 26, 2019, and in light United States v. Briggs, __ M.J. __(C.A.A.F. Feb. 22, 2019), it is ordered that the three certified issues are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is therefore affirmed. Appellee’s motion is denied as moot.

An unsurprising result considering the court’s unanimous decision in United States v. Briggs, __ M.J. __ (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

Back in July the Air Force CCA issued a decision in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), in which it reversed a 2017 conviction for a rape alleged to have occurred in 2000.

The CCA took that action because in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held 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.

In Collins the CCA observed that:

In light of Mangahas, the statute of limitations applicable to the charged offense of rape in violation of Article 120, UCMJ, committed on or about 25 August 2000 was five years. See Mangahas, 77 M.J. at 225. Therefore, the statute of limitations in Appellant’s case expired in August 2005, more than ten years before the charge and specification were preferred and delivered to the summary court-martial convening authority in March 2016.

78 M.J. at 534. Furthermore, the CCA noted that even if the extension of the statute of limitations enacted by Congress in 2006 were retroactive, the ex post facto clause prohibits applying the extension in Collins because the time period under the pre-extension statute of limitations (as interpreted by Mangahas) expired before the extension.

On Monday the Air Force JAG certified the case to CAAF:

No. 19-0052/AF. United States, Appellant v. Richard D. Collins, Appellee. CCA 39296. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THAT THE 2006 AMENDMENT TO ARTICLE 43, UCMJ, CLARIFYING THAT RAPE IS AN OFFENSE WITH NO STATUTE OF LIMITATIONS, DID NOT APPLY TO APPELLEE’S 2000 RAPE OFFENSE.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLEE COULD SUCCESSFULLY RAISE THE STATUTE OF LIMITATIONS DEFENSE FOR THE FIRST TIME ON APPEAL.

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT THE MILITARY JUDGE COMMITTED PLAIN ERROR BY FAILING TO INFORM APPELLEE HE COULD RAISE THE STATUTE OF LIMITATIONS AS A BAR TO TRIAL.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 5th day of December, 2018.

CAAF is considering similar issues in United States v. Briggs, No. 16-0711/AF (CAAFlog case page). The oral argument in Briggs is scheduled for December 4, 2018.

In United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF upended precedent to hold 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. Mangahas was charged with rape in 2015 based on allegations dating from 1997. He moved to dismiss on both due process (speedy trial) grounds and based on the statute of limitations (even though precedent was solidly against the statute of limitations challenge). The military judge agreed with the due process challenge and dismissed the charge, but the prosecution appealed and the Air Force CCA reversed the military judge. CAAF then granted review and reinstated the dismissal, but it did so by re-interpreting the applicable statute of limitations (CAAF did not decide the due process challenge).

A recent decision by the Air Force CCA applies Mangahas to reverse a rape conviction and dismiss the charge, even though the appellant did not object at trial. In United States v. Collins, __ M.J. __, No. 39296 (A.F. Cr. Crim. App. Jul 23, 2018) (link to slip op.), a three-judge panel of the CCA explains:

Appellant contends that in light of Mangahas, the military judge committed plain error which requires this court to set aside the findings and sentence and to dismiss the charge and specification. We agree.

Under Mullins and Harcrow, we must apply the clear law at the time of appeal to cases that, like Appellant’s, are pending direct review. Mullins, 69 M.J. at 116. In light of Mangahas, the statute of limitations applicable to the charged offense of rape in violation of Article 120, UCMJ, committed on or about 25 August 2000 was five years. See Mangahas, 77 M.J. at 225. Therefore, the statute of limitations in Appellant’s case expired in August 2005, more than ten years before the charge and specification were preferred and delivered to the summary court-martial convening authority in March 2016. Accordingly, we must evaluate the events at trial in this light.

Slip op. at 6.

The case involves an allegation dating to 2000, when the alleged victim was attending initial accession training in the Air Force and Collins was one of her instructors. The alleged victim made the allegation in 2000, but she would not identify the assailant because “she did not want to ‘ruin a family.'” Slip op. at 3. The alleged victim specifically “denied that it had been one of her course instructors.” Slip op. at 3. Because she would not identify the assailant, military and civilian prosecutors ended their investigation, and the physical evidence was destroyed in 2012.

The alleged victim renewed her allegation in 2014, “this time identifying Appellant as having raped her at Sheppard AFB in 2000.” Slip op. at 3. A court-martial prosecution followed, and in 2017 Collins (then a Master Sergeant (E-7)) was convicted of a single specification of rape in violation of Article 120 and sentenced to confinement for 198 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

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