U.S. v. McPherson, 81 M.J. 372

First Principles: Constitutional Matters: Generally

1. a statute cannot revive an expired period of limitations because to do so would be an unconstitutional violation of the Ex Post Facto Clause

Core Criminal Law Subjects: Crimes: Article 134 - Indecent Acts or Liberties with a Child Pre-2019 offenses

1. the 2016 version of Article 43(b), UCMJ, that provided for a five-year statute of limitation for indecent acts with a child applied to this case where the accused was convicted of committing indecent acts with a ten-year-old child occurring in 2004 but the charges were not received by the summary court-martial convening authority until 2017 when the child was 23 years old; § 5225(f) of the NDAA 2017 specifically provided that the amendments to Article 43, UCMJ, applied to the prosecution of any offense committed before the date of the enactment of this subsection if the applicable limitation period has not yet expired, and in this case, that period had not expired where the earlier version of Article 43 allowed such specifications to proceed to trial if they were received before the child victim attained the age of 25; the language “before, on, or after” the statute’s enactment date indicated unambiguously Congress’s intention to apply specific provisions retroactively; accordingly, this specific statutory provision overcame the presumption that the statute of limitations in effect at the time of the offense controlled
2. the amendments that § 5225 of the NDAA 2017 made to the definition of “child abuse offense” in Article 43(b)(2)(B), UCMJ, were substantive and retroactively shortened the period of limitations for the specifications of indecent acts with a child in this case charged under Article 134, UCMJ, where the plain language of the 2016 version of Article 43(b)(2)(B), UCMJ, did not include offenses under Article 134 under the definition of “child abuse offense”
3. section 5225(f) of the NDAA 2017 made the amendments to Article 43(b)(2)(B) applicable to the prosecution of any offense committed before, on, or after the date of the enactment of this subsection; the date of enactment was December 23, 2016, and on that date the 2016 version of Article 43, UCMJ, barred prosecutions of the specifications at issue in this case, indecent acts with a child
4. indecent acts with a child did not fall within the definition of “child abuse offense” in the 2016 version of Article 43(b)(2)(B), UCMJ, where the statute uses the words “constitutes . . . any offense in violation of” the articles in the enumerated list of offenses (to include Article 120b, UCMJ) instead of the words “would constitute” a violation of the articles in the enumerated list; the acts described in the indecent act specifications in this case likely “would constitute” offenses under Article 120b, UCMJ, if that Article had existed in 2004 and if the charge sheet had informed the accused that he was accused of violating that article; but because a person cannot violate a statute that did not exist at the time of his acts, the accused’s acts could not constitute violations of Article 120b, UCMJ, an article that did not exist in 2004; and the charge sheet accused the accused of violating Article 134, UCMJ, an entirely different article; the acts alleged in the specifications therefore were not acts that constituted a “child abuse offense” within Congress’s definition in the 2016 version of Article 43(b)(2)(B), UCMJ
5. in this case, application of the plain text of the 2016 version of Article 43, UCMJ, which shortened the statute of limitation for indecent acts with a child committed in 2004 to five years, was not absurd (1) where it was not absurd for a statute of limitations to bar prosecution of a person who committed a heinous crime, (2) where Congress could have rationally intended to enact a statute of limitations of five years when an earlier Congress had done the same, (3) where the 2016 amendments did not create an internal inconsistency when the changes in the statute were not in conflict with each other because a court could enforce the plain meaning of each change exactly as written, and (4) where a likely legislative purpose cannot prevail over the plain meaning of a statute when the results of the plain meaning are not inherently absurd
6. in this case, the military judge committed plain error where (1) the statute of limitations barred the prosecution of the indecent acts with a child offenses and the military judge failed to inform the accused that he had a defense as required by RCM 907(b), (2) the error was prejudicial because if the military judge had informed the accused about the period of limitations, the accused surely would have asserted the period of limitations as a defense, and where the error was clear and obvious because the 2016 version of Article 43(b), UCMJ, clearly applied to this case because § 5225(f) of the NDAA 2017 plainly said that it did; Article 43(b)(1), UCMJ, clearly set a five-year period of limitations because the longer period in Article 43(b)(1)(B), UCMJ, plainly did not apply to indecent act with a child offenses charged under Article 134, UCMJ

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where an accused did not raise a statute of limitations defense at trial and the military judge failed, as required by RCM 907(b)(2)(B), to advise the accused that the statute of limitations provided a defense, an appellate court reviews the failure of the military judge to provide the required advice for plain error; to establish plain error, an accused must show (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights
2. in this case, the military judge committed plain error where (1) the statute of limitations barred the prosecution of the indecent acts with a child offenses and the military judge failed to inform the accused that he had a defense as required by RCM 907(b), (2) the error was prejudicial because if the military judge had informed the accused about the period of limitations, the accused surely would have asserted the period of limitations as a defense, and where the error was clear and obvious because the 2016 version of Article 43(b), UCMJ, clearly applied to this case because § 5225(f) of the NDAA 2017 plainly said that it did; Article 43(b)(1), UCMJ, clearly set a five-year period of limitations because the longer period in Article 43(b)(1)(B), UCMJ, plainly did not apply to indecent act with a child offenses charged under Article 134, UCMJ

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

1. the questions of which version of the statute of limitations applies to a case and whether the applicable statute of limitations has run are questions of law that an appellate court reviews de novo
2. where an accused did not raise a statute of limitations defense at trial and the military judge failed, as required by RCM 907(b)(2)(B), to advise the accused that the statute of limitations provided a defense, an appellate court reviews the failure of the military judge to provide the required advice for plain error; to establish plain error, an accused must show (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights

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

1. laws enacted with good intention when put to the test, frequently, and to the surprise of the law maker himself, turn out to be mischievous, absurd, or otherwise objectionable; but absent exceptional circumstances, the remedy for such laws lies with the lawmaking authority, and not with the courts; to disregard the plain meaning of a statute, an appellate court would have to find justification for wrenching from the words of a statute a meaning which literally they do not bear in order to escape consequences thought to be absurd or to entail great hardship
2. questions of statutes of limitations are fundamentally matters of legislative decision, and a statute of limitations may provide for a different result from the general rule that a statute of limitations in effect at the time of the offense controls
3. the heading of a section of a statute cannot limit the plain meaning of the text of that statute
4. an unintentional drafting gap in a statute is insufficient to warrant judicial correction; correction is the province of Congress in cases where an admittedly anomalous result may seem odd, but is not absurd
5. in very limited circumstances, a court can refuse to apply the literal text of a statute when doing so would produce an absurd result
6. a departure from the letter of the law may be justified to avoid an absurd result if the absurdity is so gross as to shock the general moral or common sense
7. a litigant who asks a court to apply the absurdity doctrine should explain in detail why following the plain meaning of a statute would produce absurd results
8. all statutes of limitations prevent some perpetrators from being brought to justice
9. statutes of limitations balance the need for enforcing laws on the merits against the need for repose and concerns about the staleness of evidence
10. a party’s argument that a court should reject a literal reading of a statute because it produces absurd results fails if Congress could rationally have made such a reading the law
11. internal inconsistency in legislation may be a ground for applying the absurdity doctrine
12. the absurdity doctrine focuses on the inherent absurdity of the results of interpreting statutes according to their plain meaning
13. it is ultimately the provisions of laws rather than the principal concerns of the legislators that govern
14. under the doctrine of repose, criminal statutes of limitation are to be liberally interpreted in favor of repose
15. given that they are to be liberally interpreted in favor of repose, statutes of limitations ought not be extended by construction to embrace crimes not so denominated
16. because courts must liberally construe ambiguous criminal statutes of limitations in favor of repose, it could not be absurd to construe them according to their plain text, when the plain text is also in favor of repose
17. under the rule of lenity, ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity
18. it is doubtful that the rule of lenity applies to the interpretation of statutes of limitations; but interpreting a statute of limitations contrary to its plain meaning so that it disadvantages the accused certainly seems to contradict the general thrust of the rule
19. a statute cannot revive an expired period of limitations because to do so would be an unconstitutional violation of the Ex Post Facto Clause
20. courts are not empowered to repair a congressional oversight or mistake in a statute because enlargement of a statute by a court, so that what was omitted, presumably by inadvertence, may be included within its scope, transcends the judicial function