Argument Preview: Does Article 34(c) – which allows corrections to specifications – permit changes that would otherwise trigger the statute of limitations, in United States v. Moore
CAAF will hear oral argument in the certified Army case of United States v. Moore, No. 20-0119/AR (CAAFlog case page), on Tuesday, March 17, 2020, after the argument in Baas. The case is an interlocutory appeal by the prosecution 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 Judge Advocate General of the Army certified one issue to CAAF:
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?
Staff Sergeant (E-6) Moore was convicted, by a general court-martial composed of officer members, of two specifications of violating a no-contact order, one specification of assault consummated by a battery of his stepdaughter, and six specifications of sexually assaulting his stepdaughter. The panel sentenced Moore to confinement for 20 years, total forfeitures, reduction to E-1, and a dishonorable discharge. On review, in an opinion available here, the Army CCA reversed five of the six convictions of sexual assault because of a Hills error, but it affirmed one conviction because it found the evidence for that allegation to be overwhelming. The CCA then authorized a rehearing, and CAAF summarily affirmed. The CCA also observed that at any such rehearing, Moore’s affirmed conviction of sexual assault could properly be used as evidence of his propensity to commit the other five alleged offenses.
The case was then returned to the convening authority, who ordered a rehearing. Prior to that, however, Army prosecutors amended the specifications to change the nature of the alleged offense. The specifications (or at least the two specifications in issue at CAAF) alleged sexual assault by causing bodily harm, and the change was to the nature of that bodily harm. Before the change the bodily harm in each allegation consisted of the application of force; after the change the bodily harm was a nonconsensual sexual act.
Those changes ultimately led the military judge to find a violation of the statute of limitations, and the prosecution appeals that finding.
The Government Division’s argument focuses on Article 34(c), which permits changing a specification to make it “conform to the substance of the evidence” contained in an Article 32 report. Article 34(c) was the focus of CAAF’s decision last term in United States v. Stout, 79 M.J. 168 (C.A.A.F. Aug. 22, 2019) (CAAFlog case page), in which a majority of the court applied the statute to affirm modified specifications notwithstanding language in R.C.M. 603(d) that would have prohibited such changes. Stout was also a case involving a rehearing where the prosecution made significant changes to the specifications, and CAAF’s decision provides a clear exception that – at least in a case such as this – appears to swallow the rule against such changes:
Like this case, Stout involved amendments made prior to a referral to a rehearing to conform specifications with the evidence adduced at an Article 32, UCMJ, investigation held prior to the original trial. Id. at 168-170. Here, just as in Stout, Article 34(c), UCMJ, specifically authorized the amendments and did not require a new preferral. Therefore, because the government neither preferred anew nor had an obligation to do so, Article 43(b)(1), UCMJ, dictates that the statute of limitations remained tolled by the receipt of the preferred specifications by the SCMCA on December 11, 2013.
Gov’t Div. Br. at 21.
Moore’s brief argues that Article 34 is not relevant to the issue in this case.
• ACCA opinion
• ACCA opinion on reconsideration
• Blog post: CAAF grants review
• Appellant’s (Gov’t Div.) brief
• Appellee’s brief
• Appellant’s (Gov’t Div.) reply brief
• Blog post: Argument preview