CAAFlog » October 2019 Term » United States v. Moore

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Baas, No. 19-0377/MC (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Moore, No. 20-0119/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

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.

Case Links:
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

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.