U.S. v. Adams, 81 M.J. 475

Core Criminal Law Subjects: Crimes: Article 125 - Sodomy Pre-2019 offenses

1. Congress’s 2016 amendments to Article 43, UCMJ, reduced the statute of limitations for indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, to five years – see US v. McPherson, 81 MJ 372 (CAAF 2021)
2. the savings clause in the 2016 amendments to Article 43, UCMJ, did not apply in this case and prevent the five-year statute of limitations from barring the rehearing of indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, because the original charges were not dismissed as defective or insufficient for any cause but rather were repreferred as new charges for the same offenses with only minor changes and the government reassured the military judge that the new charges and specifications were exactly the same as the original charges; for the savings clause in Article 43(g), UCMJ, to apply, the original charges must have been dismissed because they were defective or insufficient in some manner
3. a plain reading of the 2016 version of Article 43(b), UCMJ, provides that the statute of limitations for the charges in this case under Articles 125 and 134, UCMJ, was five years; if appellant had been properly advised of this issue by the military judge at trial as required by RCM 907(b)(2)(B), he undoubtedly would have raised the issue as a defense; accordingly, the statute of limitations error here was clear and prejudiced appellant’s defense and substantial rights

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

1. Congress’s 2016 amendments to Article 43, UCMJ, reduced the statute of limitations for indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, to five years – see US v. McPherson, 81 MJ 372 (CAAF 2021)
2. the savings clause in the 2016 amendments to Article 43, UCMJ, did not apply in this case and prevent the five-year statute of limitations from barring the rehearing of indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, because the original charges were not dismissed as defective or insufficient for any cause but rather were repreferred as new charges for the same offenses with only minor changes and the government reassured the military judge that the new charges and specifications were exactly the same as the original charges; for the savings clause in Article 43(g), UCMJ, to apply, the original charges must have been dismissed because they were defective or insufficient in some manner
3. a plain reading of the 2016 version of Article 43(b), UCMJ, provides that the statute of limitations for the charges in this case under Articles 125 and 134, UCMJ, was five years; if appellant had been properly advised of this issue by the military judge at trial as required by RCM 907(b)(2)(B), he undoubtedly would have raised the issue as a defense; accordingly, the statute of limitations error here was clear and prejudiced appellant’s defense and substantial rights

Core Criminal Law Subjects: Defenses: Generally

1. Congress’s 2016 amendments to Article 43, UCMJ, reduced the statute of limitations for indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, to five years – see US v. McPherson, 81 MJ 372 (CAAF 2021)
2. the savings clause in the 2016 amendments to Article 43, UCMJ, did not apply in this case and prevent the five-year statute of limitations from barring the rehearing of indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, because the original charges were not dismissed as defective or insufficient for any cause but rather were repreferred as new charges for the same offenses with only minor changes and the government reassured the military judge that the new charges and specifications were exactly the same as the original charges; for the savings clause in Article 43(g), UCMJ, to apply, the original charges must have been dismissed because they were defective or insufficient in some manner
3. a plain reading of the 2016 version of Article 43(b), UCMJ, provides that the statute of limitations for the charges in this case under Articles 125 and 134, UCMJ, was five years; if appellant had been properly advised of this issue by the military judge at trial as required by RCM 907(b)(2)(B), he undoubtedly would have raised the issue as a defense; accordingly, the statute of limitations error here was clear and prejudiced appellant’s defense and substantial rights

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when a statute of limitations issue is not raised at trial, an appellate court reviews for plain error; to establish plain error, an appellant must demonstrate (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights
2. a plain reading of the 2016 version of Article 43(b), UCMJ, provides that the statute of limitations for the charges in this case under Articles 125 and 134, UCMJ, was five years; if appellant had been properly advised of this issue by the military judge at trial as required by RCM 907(b)(2)(B), he undoubtedly would have raised the issue as a defense; accordingly, the statute of limitations error here was clear and prejudiced appellant’s defense and substantial rights

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

1. deciding whether a statute of limitations has expired is a question of law that an appellate court reviews de novo
2. when a statute of limitations issue is not raised at trial, an appellate court reviews for plain error; to establish plain error, an appellant must demonstrate (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. Congress’s 2016 amendments to Article 43, UCMJ, reduced the statute of limitations for indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, to five years – see US v. McPherson, 81 MJ 372 (CAAF 2021)
2. it is a cardinal principle of statutory construction that courts must give effect, if possible, to every clause and word of a statute; courts are obliged to give effect, if possible, to every word Congress used
3. the savings clause in the 2016 amendments to Article 43, UCMJ, did not apply in this case and prevent the five-year statute of limitations from barring the rehearing of indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, because the original charges were not dismissed as defective or insufficient for any cause but rather were repreferred as new charges for the same offenses with only minor changes and the government reassured the military judge that the new charges and specifications were exactly the same as the original charges; for the savings clause in Article 43(g), UCMJ, to apply, the original charges must have been dismissed because they were defective or insufficient in some manner