On Friday CAAF docketed this certification from the Army:

No. 20-0119/AR. U.S. v. Antonio T. Moore. CCA 20180692. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date on the following issue:

DID THE ARMY COURT ERR WHEN, UPON RECONSIDERATION, IT DETERMINED THAT THE 5-YEAR STATUTE OF LIMITATIONS BARRED THE REHEARING OF THE TWO SEXUAL ASSAULT SPECIFICATIONS?

Appellee will file an answer under Rule 22(b) on or before the 24th day of February, 2020.

The case involves an Article 62 interlocutory appeal of a military judge’s ruling that dismissed all of one specification and part of a second specification for violation of the statute of limitations based on a post-referral major change. The Army CCA issued two opinions, the first available here and the second available here.

The facts are complicated, but can be summarized as that the case was remanded with a rehearing authorized for five specifications of sexual assault (in a decision noted here). In advance of the rehearing the prosecution amended the language in the specifications, changing the alleged acts in ways that the military judge ruled constituted major changes (see United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page)). Those changes resulted in all five specifications violating the statute of limitations for sexual assault, because the alleged acts occurred before Congress eliminated the five-year statute of limitations (in the 2013 changes to the UCMJ, discussed here), and more than five years before the change. In other words, by changing the specifications the prosecution functionally restarted the case and triggered the statute of limitations.

The defense objected and the military judge dismissed all five specifications in two separate rulings. The first ruling was made before findings and dismissed three specifications, and the prosecution did not appeal that ruling. The second ruling was made post-trial (after a renewed defense motion) and dismissed part of one of the remaining two specifications, and all of the other. The prosecution appealed the second ruling.

In the CCA’s first opinion, a three-judge panel split 2-1 to conclude that the changes to the two specifications were merely minor changes that did not implicate the statute of limitations, and it granted the prosecution appeal and reversed the military judge. But Moore sought reconsideration, and with the help of a change in panel composition the decision changed to 2-1 in favor of rejecting the prosecution appeal and affirming the military judge’s ruling on the basis that the changes were, after all, major changes.

CAAF will now review that decision.

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