U.S. v. Moore, 79 M.J. 483

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

1. prior to 26 December 2013, the statute of limitation for sexual assault offenses was five years; for offenses occurring on or after 26 Dec 2013, the statute of limitations for sexual assault offenses has been eliminated
2. in this case, where two sexual assault specifications as originally drafted were properly tolled before the five year statute of limitations had run, amendments to those specifications made by the convening authority pursuant to the recommendation of the pretrial investigating officer to conform with the evidence did not make the previous tolling ineffective, even though the amendments were made more than five years after the conduct alleged in the amended specifications occurred; nothing in Article 43, UCMJ, suggests that a charge or specification that was timely when received by the officer exercising summary court-martial jurisdiction might become untimely if the convening authority makes changes to the charge or specification that are authorized by Article 34(c), UCMJ; on the contrary, Article 43, UCMJ, says nothing about amendments, even though amendments are very common; this silence leads to the conclusion that Congress chose not to create a different rule for when the statute of limitations is tolled in cases where the convening authority makes authorized amendments; likewise, when a convening authority makes changes to charges or specifications that are authorized by Article 34(c), UCMJ, nothing in the language of that article suggests that the convening authority is creating a new charge or specification as opposed to merely amending an existing charge or specification; and Article 34(c), UCMJ, does not indicate in any way that a properly amended charge or specification must go back to the officer exercising summary court-martial jurisdiction to toll the statute of limitations, or that the date of amendment marks the date when the original charge or specification was considered received by that officer; if Congress had intended either of those results, Congress easily could have indicated when changes create new charges and what effect creating new charges would have on the statute of limitations; the silence in Article 34(c), UCMJ, about these subjects leads to the conclusion that changes to charges and specifications that are authorized by Article 34(c), UCMJ, do not affect the application of the statute of limitations; furthermore, precedent in US v. Arbic [16 C.M.A. 292, 36 C.M.R. 448 (1966)] supports this position

Trial Stages: Pretrial: Charges and Specifications

1. nothing in Article 43, UCMJ, suggests that a charge or specification that was timely when received by the officer exercising summary court-martial jurisdiction might become untimely if the convening authority makes changes to the charge or specification that are authorized by Article 34(c), UCMJ; on the contrary, Article 43, UCMJ, says nothing about amendments, even though amendments are very common; this silence leads to the conclusion that Congress chose not to create a different rule for when the statute of limitations is tolled in cases where the convening authority makes authorized amendments; likewise, when a convening authority makes changes to charges or specifications that are authorized by Article 34(c), UCMJ, nothing in the language of that article suggests that the convening authority is creating a new charge or specification as opposed to merely amending an existing charge or specification; and Article 34(c), UCMJ, does not indicate in any way that a properly amended charge or specification must go back to the officer exercising summary court-martial jurisdiction to toll the statute of limitations, or that the date of amendment marks the date when the original charge or specification was considered received by that officer; if Congress had intended either of those results, Congress easily could have indicated when changes create new charges and what effect creating new charges would have on the statute of limitations; the silence in Article 34(c), UCMJ, about these subjects leads to the conclusion that changes to charges and specifications that are authorized by Article 34(c), UCMJ, do not affect the application of the statute of limitations; furthermore, precedent in US v. Arbic [16 C.M.A. 292, 36 C.M.R. 448 (1966)] supports this position
2. prior to 2019, RCM 603(d) specified that if major changes were made to a specification, the specification must be preferred anew; in US v. Stout [79 M.J. 168 (CAAF 2019)], the CAAF held that RCM 603 did not apply when a convening authority amends a specification under Article 34(c), UCMJ, prior to referring it to trial; as amended in 2019, the current version of RCM 603 permits changes to charges and specifications prior to referral regardless of whether they are major or minor