United States v. Briggs, 16-0711

CourtUnited States Court of Appeals, Armed Forces
Writing for the CourtMAGGS JUDGE.
PartiesUNITED STATES Appellee v. Michael J. D. BRIGGS, Lieutenant Colonel United States Air Force, Appellant
Decision Date22 February 2019
Docket Number16-0711,Crim. App. 38370

UNITED STATES Appellee
v.

Michael J. D. BRIGGS, Lieutenant Colonel United States Air Force, Appellant

No. 16-0711

Crim. App. No. 38370

United States Court of Appeals, Armed Forces

February 22, 2019


Argued December 4, 2018

Military Judges: Dawn R. Eflein (arraignment) and Donald R. Eller (trial)

For Appellant: Stephen I. Vladeck, Esq. (argued); Major Johnathan D. Legg and Terri R. Zimmermann, Esq. (on brief).

For Appellee: Mary Ellen Payne, Esq. (argued); Lieutenant Colonel Joseph Kubler (on brief).

Judge MAGGS delivered the opinion of the Court, in which Chief Judge STUCKY, and Judges RYAN, OHLSON, and SPARKS, joined.

MAGGS JUDGE.

In 2014, a general court-martial composed of a military judge alone found Appellant guilty, contrary to his plea, of one charge and one specification of rape in violation of Article 120(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(a) (2000), for conduct that occurred in 2005. For reasons set out below, we conclude that the applicable statute of limitations requires the finding and sentence to be set aside and the charge and specification to be dismissed.

I. Factual and Procedural Background

In May 2005, Appellant was a Captain and an F-16 instructor pilot. Airman First Class (A1C) DK was assigned to the aircrew life support equipment section of Appellant's squadron. Following an evening of heavy drinking at or near Mountain Home Air Force Base in Colorado, Appellant went to A1C DK's room and forced her to have sex with him even though she said "no" and "stop" and tried to roll away. A1C DK did not immediately report the incident to law enforcement authorities, but she did tell others about it.

Both Appellant and A1C DK remained in the Air Force after their 2005 encounter. By July 2013, Appellant had become a Lieutenant Colonel, and DK had become a Staff Sergeant (SSgt). SSgt DK telephoned Appellant to discuss the incident. Without Appellant's knowledge, SSgt DK recorded their conversation. During the telephone call, Appellant acknowledged his misconduct. He specifically told SSgt DK: "I will always be sorry for raping you."

The recording of the telephone call and other information led to the preparation of a sworn charge and specification of rape, which was received by the summary court-martial convening authority on February 18, 2014, more than eight years after the rape occurred.[1] The case was subsequently referred to a general court-martial. Appellant did not raise the statute of limitations before or during the trial, and the military judge did not advise Appellant that the statute of limitations might provide a basis for dismissing the charge and specification.[2] Contrary to his plea, the military judge found Appellant guilty of the charge and specification and sentenced him to a dismissal, confinement for five months, and a reprimand. The convening authority approved the sentence as adjudged.

Appellant first attempted to raise the statute of limitations when he appealed to the United States Air Force Court of Criminal Appeals (AFCCA). After initially asserting several unrelated assignments of error, Appellant sought leave to file a supplemental assignment of error asserting the statute of limitations. The AFCCA, however, denied leave to file the supplemental assignment of error because Appellant had not raised the statute of limitations at trial. The AFCCA subsequently rejected Appellant's other assignments of error and affirmed the adjudged and approved findings and sentence. United States v. Briggs, No. ACM 38730, 2016 CCA LEXIS 385, 2016 WL 3682568 (A.F. Ct. Crim. App. June 23, 2016).

Appellant then filed a petition for grant of review in this Court. The assignments of error in the petition's supplement did not address the statute of limitations, but pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant personally asserted that his trial counsel was ineffective for failing to raise and litigate a statute of limitations defense. We granted review of one assignment of error concerning the judicial composition of the AFCCA. United States v. Briggs, 75 M.J. 467 (C.A.A.F. 2016). We denied review of the ineffective assistance of counsel issue concerning counsel's failure to raise the statute of limitations. United States v. Briggs, 76 M.J. 36 (C.A.A.F. 2016). We then affirmed the decision of the AFCCA by summary disposition.[3]United States v. Briggs, 76 M.J. 338 (C.A.A.F. 2017).

Appellant next petitioned the Supreme Court of the United States for a writ of certiorari. The Supreme Court initially denied Appellant's petition along with others presenting the judicial composition issue. Abdirahman v. United States, 138 S.Ct. 2702 (2018) (mem.). But on reconsideration, the Supreme Court granted the petition as to Appellant, vacated our judgment affirming the AFCCA, and remanded the case to us for further consideration in light of our decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). Abdirahman v. United States, 139 S.Ct. 38 (2018).

Mangahas is a case concerning the statute of limitations for rape that we decided while Appellant's petition for certiorari was pending. In Mangahas, we corrected our interpretation of the version of Article 43(a), UCMJ, 10 U.S.C. § 843(a), that was in force from 1986 until 2006. 77 M.J. at 222. That version of Article 43(a), UCMJ, provided that "any offense punishable by death, may be tried and punished at any time without limitation." 10 U.S.C. § 843(a) (1994). Two precedents of this Court, United States v. Stebbins, 61 M.J. 366, 369 (C.A.A.F. 2005), and Willenbring v. Neurauter, 48 M.J. 152, 178 (C.A.A.F. 1998), had interpreted this language to mean that the offense of rape did not have a period of limitations because at the time those cases were decided, Article 120(a), UCMJ, provided that rape may "be punished by death or such other punishment as a court-martial may direct." In Stebbins and Willenbring, we recognized that the Supreme Court had earlier held in Coker v. Georgia, 433 U.S. 584, 598 (1977), that imposing capital punishment for the offense of rape of an adult woman would violate the Eighth Amendment of the United States Constitution. Stebbins, 61 M.J. at 369; Willenbring, 48 M.J. at 178. But in both cases we concluded that the Coker decision did not affect the application of Article 43(a) to the offense of rape as defined in Article 120(a). Stebbins, 61 M.J. at 369; Willenbring, 48 M.J. at 178. In Mangahas, however, we reconsidered this view because there is, in fact, no set of circumstances under which anyone could constitutionally be punished by death for the rape of an adult woman. 77 M.J. at 223-24. Accordingly, we overruled Stebbins and Willenbring to the extent that they held that rape was punishable by death at the time of the charged offenses. Id. at 222. We then concluded that 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. Id.

Reconsidering Appellant's statute of limitation defense in light of Mangahas in this remand also requires us to address whether a 2006 amendment to Article 43, UCMJ, made by the National Defense Authorization Act for Fiscal Year 2006 (NDAA FY 2006), Pub. L. No. 109-163, §§ 552-53, 119 Stat. 3136, 3264 (2006), applies to an offense that occurred before its enactment. The relevant amendment, as discussed further below, provides that the offense of rape "may be tried and punished at any time without limitation." Article 43(a), UCMJ, 10 U.S.C. § 843(a) (2012) (as amended by NDAA FY 2006 § 553). The Court in Mangahas noted the existence of the 2006 amendment to Article 43, UCMJ, but concluded that the amendment did not affect the issues before it. See generally Mangahas, 77 M.J. at 222 n.2.[4] To determine the effect, if any, of the 2006 amendment to Article 43, UCMJ, on this case, we asked the parties to brief and argue two issues:

I. DOES THE 2006 AMENDMENT TO ARTICLE 43, UCMJ, CLARIFYING THAT RAPE IS AN OFFENSE WITH NO STATUTE OF LIMITATIONS, APPLY RETROACTIVELY TO OFFENSES COMMITTED BEFORE ENACTMENT OF THE AMENDMENT BUT FOR WHICH THE THEN EXTANT STATUTE OF LIMITATIONS HAD NOT EXPIRED
II. CAN APPELLANT SUCCESSFULLY RAISE A STATUTE OF LIMITATIONS DEFENSE FOR THE FIRST TIME ON APPEAL

United States v. Briggs, 78 M.J. 106 (C.A.A.F. 2018). We turn now to these issues.

II. Effect of the 2006 Amendment to Article 43, UCMJ

In light of our decision in Mangahas, the parties agree that the version of Article 43, UCMJ, that existed at the time of Appellant's charged offense in 2005 established a five-year period of limitations. They further agree that, if Congress had not amended Article 43, UCMJ, in 2006, the period of limitations would have run in 2010, long before the charges in this case were received by the convening authority in 2014. What they disagree about is whether the 2006 amendment to Article 43, UCMJ, applies retroactively to a rape that occurred in 2005, thereby eliminating the statute of limitations for that offense. In other words, if the 2006 amendment does not apply retroactively, the finding of guilt in this case should be set aside and the charge and specification of this case should be dismissed. But if the 2006 amendment does apply retroactively, the...

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