U.S. v. Briggs, 78 M.J. 289

First Principles: Constitutional Matters: Generally

1. applying a new statute of limitations to revive a previously time-barred prosecution violates the Constitution’s Ex Post Facto Clause

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. RCM 907(b)(2)(B) requires the military judge to inform the accused of the right to assert the statute of limitations as a defense if it appears that the accused is unaware of that right

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

1. a 2006 amendment to Article 43, UCMJ, made by the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. No. 109-163, §§ 552−53, 119 Stat. 3136, 3264 (2006)), provided that the offense of rape may be tried and punished at any time without limitation
2. in this case, the version of Article 43, UCMJ, that existed at the time of Appellant’s charged rape offense in 2005 established a five-year period of limitations; in 2006, Congress amended Article 43, UCMJ, to clarify that rape was an offense with no statute of limitations; had Congress not amended Article 43, UCMJ, in 2006, the period of limitations with respect to Appellant’s 2005 charged rape offense would have run in 2010, long before the charges in this case were received by the summary court-martial convening authority in 2014; because the 2006 amendment to Article 43, UCMJ, did not apply retroactively to offenses committed before the enactment of the amendment but for which the then extant statute of limitations had not expired, the finding of guilt in this case had to be set aside and the charge dismissed
3. the 2006 amendment to Article 43, UCMJ, that provided that the offense of rape may be tried and punished at any time without limitation did not apply to a rape that occurred in 2005 based on the general presumption against retroactive legislation, the general presumption in favor of liberal construction of criminal statutes of limitation in favor of repose, and the absence of any indication of congressional intent to apply the 2006 amendment retrospectively

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (a) Rape

1. a 2006 amendment to Article 43, UCMJ, made by the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. No. 109-163, §§ 552−53, 119 Stat. 3136, 3264 (2006)), provided that the offense of rape may be tried and punished at any time without limitation

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Pre-2019 offenses › (a) Rape

1. a 2006 amendment to Article 43, UCMJ, made by the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. No. 109-163, §§ 552−53, 119 Stat. 3136, 3264 (2006)), provided that the offense of rape may be tried and punished at any time without limitation

Core Criminal Law Subjects: Defenses: Generally

1. for offenses that have a period of limitations, the accused has a defense if the period of limitations expires before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command
2. RCM 907(b)(2)(B) requires the military judge to inform the accused of the right to assert the statute of limitations as a defense if it appears that the accused is unaware of that right
3. the period of limitations for rape of an adult woman under the version of Article 43(a), UCMJ, in force from 1986 until 2006, was five years
4. applying a new statute of limitations to revive a previously time-barred prosecution violates the Constitution’s Ex Post Facto Clause
5. in this case, the version of Article 43, UCMJ, that existed at the time of Appellant’s charged rape offense in 2005 established a five-year period of limitations; in 2006, Congress amended Article 43, UCMJ, to clarify that rape was an offense with no statute of limitations; had Congress not amended Article 43, UCMJ, in 2006, the period of limitations with respect to Appellant’s 2005 charged rape offense would have run in 2010, long before the charges in this case were received by the summary court-martial convening authority in 2014; because the 2006 amendment to Article 43, UCMJ, did not apply retroactively to offenses committed before the enactment of the amendment but for which the then extant statute of limitations had not expired, the finding of guilt in this case had to be set aside and the charge dismissed
6. the 2006 amendment to Article 43, UCMJ, that provided that the offense of rape may be tried and punished at any time without limitation did not apply to a rape that occurred in 2005 based on the general presumption against retroactive legislation, the general presumption in favor of liberal construction of criminal statutes of limitation in favor of repose, and the absence of any indication of congressional intent to apply the 2006 amendment retrospectively
7. under RCM 907(b)(2)(B), the accused has a right before final adjournment of the case to assert the statute of limitations as a ground for dismissing a charge or specification; and the military judge must inform the accused of this right if it appears that the accused is unaware of it

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in federal courts governed by the Federal Rules of Criminal Procedure, a statute of limitations defense is not jurisdictional and therefore the defense becomes part of a case only if the defendant puts the defense in issue; accordingly, when a defendant does not press the defense, then there is no error for an appellate court to correct and certainly no plain error; in a court-martial, however, because RCM 907(b)(2)(B) requires the military judge to inform the accused of the right to assert the statute of limitations when it appears that the accused is unaware of the right, this rule makes the statute of limitations part of a case whenever the accused has a statute of limitations defense and does not appear to know it; therefore, an appellate court can review an appellant’s failure to raise the statute of limitations at trial for plain error
2. to establish plain error, appellant must show (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; plain error is assessed at the time of appeal
3. in this case, appellant can successfully raise a statute of limitations defense for the first time on appeal where (1) the statute of limitations for a rape committed in 2005 was five years, (2) as assessed in hindsight on appeal, for the military judge not to have informed appellant of the five-year period of limitation when the sworn charges against him were received by the summary court-martial convening authority in 2014, it was clear and obvious error, and (3) this clear and obvious error warranted relief because the error resulted in material prejudice to appellant’s substantial rights; if the military judge had informed appellant of a possible statute of limitations defense, it would have required no speculation to believe that appellant would have sought dismissal

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court generally applies the statute of limitations that was in effect at the time of the offense
2. an appellate court generally presumes that subsequent amendments do not apply because there is both a presumption against retroactive legislation and a presumption in favor of repose
3. congressional enactments will not be construed to have retroactive effect unless their language requires this result

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. legislative history is not the law and courts do not inquire what the legislature meant but instead ask only what the statute means

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. congressional enactments will not be construed to have retroactive effect unless their language requires this result