United States v. Private E1 ANTONIO T. MOORE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BURTON, HAGLER, and FLEMING
Appellate Military Judges

UNITED STATES, Appellant
v.
Private E1 ANTONIO T. MOORE
United States Army, Appellee

ARMY MISC 20180692

Headquarters, 25th Infantry Division
Kenneth Shahan, Military Judge
Colonel Ian R. Iverson, Staff Judge Advocate

For Appellant: Captain Allison L. Rowley, JA (argued); Colonel Steven P. Haight,
JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Catharine M. Parnell, JA;
Captain Allison L. Rowley, JA (on brief); Lieutenant Colonel Eric K. Stafford, JA;
Captain Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on reply brief).

For Appellee: Captain Benjamin J. Wetherell, JA (argued); Lieutenant Colonel
Christopher D. Carrier, JA; Major Jack D. Einhorn, JA; Captain Benjamin A.
Accinelli, JA; Captain Benjamin J. Wetherell, JA (on brief).

3 July 2019
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MEMORANDUM OPINION AND ACTION ON APPEAL
BY THE UNITED STATES FILED PURSUANT TO
ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAGLER, Judge:

The United States appeals the ruling of a military judge dismissing one
specification and partially dismissing another specification based on an amendment
occurring after the expiration of the statute of limitations.

We first address whether we have jurisdiction over an appeal of a partial
dismissal under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862
[hereinafter UCMJ]. After concluding that we do, we reverse the military judge’s
ruling for both specifications.
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BACKGROUND

As it remains integral to our analysis of the military judge’s ruling (and
provides context to the analysis of our dissenting colleague), the unique procedural
history of this case warrants an extended discussion. 1

A. The Initial Trial

In 2014, a panel of officers sitting as a general court-martial convicted
appellee, contrary to his pleas, of two specifications of willfully disobeying a
superior commissioned officer, six specifications of sexual assault, and one
specification of assault consummated by battery, in violation of Articles 90, 120,
and 128, UCMJ. The panel sentenced appellee to a dishonorable discharge,
confinement for twenty years, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority approved the adjudged sentence.

On appeal, pursuant to a Hills error, 2 this court set aside the findings of guilty
for five of the six sexual assault specifications, affirmed the remaining findings of
guilty, and authorized a rehearing on the impacted specifications. United States v.
Moore, ARMY 20140875, 2017 CCA LEXIS 191 (Army Ct. Crim. App. 23 Mar.
2017) (mem. op.). Our superior court affirmed. United States v. Moore, 2018 CAAF
LEXIS 63 (C.A.A.F. 10 Jan. 2018).

B. The Rehearing

After appellee’s case was returned to the convening authority, the government
elected to pursue a rehearing for the five specifications that were set aside. Notably,
rather than proceeding with the same charged language from the initial trial, trial
counsel instead amended these specifications prior to referral. More specifically, for
each specification, trial counsel changed the bodily harm language from “removing
[AR’s] underwear, placing his hands on her buttocks, and pressing her down with his
hands” to “by penetrating [AR’s] vulva with his penis.”

1
When reviewing matters under Article 62, UCMJ, we may act only with respect to
matters of law. United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). While we
limit our holding to the legal issues presented, we provide a broader factual and
procedural picture for context. To be clear, we “may not make findings of fact” and
nothing in this opinion should be construed as extending beyond our express factual
limitations. United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995).
2
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

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At the rehearing, the defense did not object to these changes prior to entry of
pleas. Instead, before closing arguments, the defense moved to dismiss three of the
amended specifications as being outside the statute of limitations. The military
judge put the court in recess to allow the government to prepare its response, and the
military judge and counsel subsequently held two conferences pursuant to Rule for
Courts-Martial (R.C.M.) 802.

Upon reopening the court, the military judge explained they had discussed
“the narrowing of the issues that we need to resolve, which we all appear to agree is
whether the changes are a major change or a minor change.” The military judge also
directed the parties to United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017), which he
“would likely be relying upon . . . in analyzing the change issue in this case.”

Following argument by the parties, the military judge issued a ruling for each
of the amended specifications. Essentially, after the defense moved to dismiss three
specifications, the military judge provided a ruling addressing all five specifications.
In his ruling, the military judge applied Reese in determining that each of the
amendments constituted major changes, but he reached separate conclusions over the
appropriate remedy.

First, for the three specifications encompassed in the defense motion, the
military judge dismissed the specifications as being “barred from prosecution due to
the running of the statute of limitations.” The military judge stated that any minor
changes “would not be problematic,” but “because the changes are major,” the
government did not provide the specifications to the relevant convening authority
within the statute of limitations.

Next, for the two specifications that were not part of the defense motion, the
military judge concluded “the major change created a requirement for a new Article
32 Preliminary Hearing,” but the defense “waived both an objection to the major
change and a motion for a defective referral” by failing to make a timely objection.
The military judge noted the defense had “raised the possibility of a motion for a
new Article 32 Preliminary Hearing,” which meant “they were clearly aware of the
issue and chose not to file a motion” for these specifications. No one addressed a
statute of limitations concern with these two specifications.

Unlike the three specifications within the defense motion, these two
specifications involved conduct occurring on or after 28 June 2012 (i.e. the revised
Article 120). As outlined below, the military judge later found that “[a]ll counsel at
trial, and the military judge, overlooked the fact that the effective date of
elimination of the statute of limitations for the ‘new’ Article 120 was 26 December
2013,” and that the timeframe of these specifications fell into the “window” between
the effective date of the statute (28 June 2012) and the elimination of the statute of
limitations (26 December 2013).

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The government did not appeal the ruling dismissing three specifications, and
the military judge convicted appellee of the two remaining specifications of sexual
assault (Specifications 2 and 3 of Additional Charge I). At the combined sentence
rehearing, which included the additional convictions previously affirmed by this
court, the military judge sentenced appellee to a dishonorable discharge and
confinement for thirteen years.

C. The Post-Trial Motion to Dismiss

Prior to authentication, the defense filed a “Motion to Reverse Findings of
Guilt and [to] Dismiss Specifications 2 and 3 of Additional Charge I.” 3

In this filing, the defense asserted: (1) the statute of limitations for these two
specifications – like the previously dismissed three specifications – was five years;
(2) the military judge had already determined the amendments to these specifications
constituted major changes; and (3) appellee “was not aware of his right to assert the
statute of limitations and was not advised by the court of the right.” In support of
its motion, the defense cited R.C.M. 907(b)(2)(B), which states “[i]f it appears the
accused is unaware of the right to assert the statute of limitations in bar of trial, the
military judge shall inform the accused of this right.”

In response, the government did not challenge the statute of limitations, but
instead argued: (1) the amendments were not major changes; (2) the defense
“tactically waived” the right to object to the amendments; and (3) the government
was not barred from prosecuting the offenses based on Article 43(g), UCMJ. The
government also cited to Musacchio v. United States, in which the Supreme Court
stated that a “district court’s failure to enforce an unraised limitations defense under
[18 U.S.C.] § 3382(a) cannot be a plain error.” 136 S. Ct. 709, 718 (2016).

In reply, the defense disputed the applicability of Article 43(g), UCMJ, and
reiterated its arguments regarding a major change and that counsel were “clearly
unaware of the statute of limitations applicability to these two specifications and
thus could not apprise the accused.”

Additionally, to distinguish Mussachio, the defense cited to United States v.
Collins, 78 M.J. 530 (A.F. Ct. Crim. App. 2018). In Collins, the Air Force Court
concluded that “Musacchio did not address the affirmative duty to bring the
statutory bar to the attention of the accused imposed on the trial judge by R.C.M.
907(b)(2)(B), which has no civilian equivalent.” 78 M.J. at 535.

3
While the defense referenced a potential Article 39(a) session, both sides requested
the military judge issue a ruling based on their written pleadings.

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D. The Military Judge’s Ruling

The military judge issued a written ruling granting the defense motion in part.
Specifically, the military judge granted the motion for Specification 3 of Additional
Charge I, but he found that only a portion of Specification 2 of Additional Charge I
fell outside the statute of limitations. As such, the military judge said he would
issue new findings that retained “a finding of guilty for the period [within the statute
of limitations].”

In his analysis, the military judge reaffirmed his previous ruling that the
amendments constituted major changes. Among other things, the military judge
concluded “the change was not fairly included in the original specification,” as the
government “changed the manner in which the offense was alleged to be committed”
and “no longer had to prove that the sexual act was brought about by additional
force beyond the penetration.”

The military judge also rejected the government’s argument regarding Article
43(g), UCMJ. In particular, the military judge stated this clause “only [applies] to
when charges or specifications are dismissed as defective or insufficient,” and the
specifications in this case were “set aside based on [Hills].”

Next, the military judge concluded the relevant statute of limitations was five
years. To this extent, the military judge stated that “[a]ll counsel at trial, and the
military judge, overlooked the fact that the effective date of elimination of the
statute of limitations for the ‘new’ Article 120 was 26 December 2013, and that the
charged offenses were allegedly committed during the 18 month ‘window’ between
28 June 2012 and 26 December 2013.”

Finally, the military judge rejected the government’s argument regarding
waiver. For this issue, the military judge placed heavy reliance on R.C.M.
907(b)(2)(B), as he found the rule “places an affirmative obligation upon the
military judge to inform an accused of the right to assert the statute of limitations in
bar of trial, if it appears that the accused is unaware of this right.”

The military judge added that a “plain reading of this rule is that if the
military judge has not done so when it is required, then the accused has not waived
his right to assert the defense,” and “[t]he Court has no doubt that had the Defense
been aware of the statute of limitations, they would have objected, as evidenced by
the fact that they lodged an objection to the other specifications that they recognized
did fall outside the statute of limitations.” To distinguish Musacchio, the military
judge favorably cited to Collins and then determined “[t]he situation here is nearly
identical.”

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E. The Government’s Appeal

Following the military judge’s ruling, the government filed a timely notice of
appeal pursuant to R.C.M. 908. This notice explained, “The subject of the
Government appeal will be the Military Judge’s ruling to dismiss Specification 3 of
Additional Charge I and partial dismissal of Specification 2 of Additional Charge I.”

On appeal, the parties dispute whether we have jurisdiction regarding the
partially dismissed specification and whether the military judge erred in his ruling.
We address both issues below.

LAW AND DISCUSSION

A. Appellee’s Jurisdictional Challenge to Specification 2 of Additional Charge I

Appellee asserts we lack jurisdiction over Specification 2 of Additional
Charge I, as the military judge’s ruling does not “terminate[] the proceedings with
respect to” this specification. See UCMJ art. 62(a)(1)(A). In response, the
government argues that a partial dismissal is not fatal to this court’s jurisdiction and
cites to a multitude of cases interpreting 18 U.S.C. § 3731 (the federal civilian
statute addressing government appeals). For the reasons outlined below, we find
that we have jurisdiction over this specification.

1. Law and Standard of Review

We review issues of statutory interpretation and jurisdiction de novo. United
States v. Jacobsen, 77 M.J. 81, 84 (C.A.A.F. 2017) (citing United States v. Vargas,
74 M.J. 1, 5 (C.A.A.F. 2014)). We look first to the text of the statute – if the
statutory language is unambiguous, the statute’s plain language will control. Id.
(citations omitted). 4

4
In the National Defense Authorization Act for Fiscal Year 2017, Congress added a
liberal construction clause to Article 62, UCMJ, which states “[t]he provisions of
this section shall be liberally construed to effect its purposes.” Pub. L. No. 114-328,
§ 5326, 130 Stat. 2000, 2929 (2016). Critically, this amendment “will not apply to
cases in which charges were already referred to trial on the effective date.”
Jacobsen, 77 M.J. at 87 n.5 (citing Pub. L. No. 114-328 at § 5542(a), 130 Stat. at
2967). Therefore, as the charges in this case were referred to trial prior to the
effective date of the amendment, this clause is not relevant to our resolution of the
jurisdictional issue.

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In the context of Article 62, UCMJ, it is also proper for courts to look to cases
interpreting 18 U.S.C. § 3731 for guidance. Id. at 86 (citing United States v.
Browers, 20 M.J. 356, 359 (C.M.A. 1985)). As our superior court (CAAF) has
noted, “Congress authorized federal civilian government appeals in criminal cases
under 18 U.S.C. § 3731 before it authorized them in the military, and modeled
Article 62, UCMJ, in large part, after 18 U.S.C. § 3731.” Id. (citation omitted). Put
another way, “Congress, in enacting the revised Article 62, UCMJ, in 1983, clearly
intended to afford the government a right to appeal which, ‘to the extent practicable
. . . parallels 18 U.S.C. § 3731.’” United States v. Lopez de Victoria, 66 M.J. 67, 70
(C.A.A.F. 2008) (ellipsis in original) (quoting S. Rep. No. 98-53, at 23 (1983)).

Our superior court has been clear, however, that “[f]ederal court decisions
interpreting 18 U.S.C. § 3731 constitute guidance, not binding precedent, in the
interpretation of Article 62.” United States v. Wuterich, 67 M.J. 63, 71 (C.A.A.F.
2008). Furthermore, any analysis of Article 62 must also “take into account the
structural differences between courts-martial and trials in federal district court, as
well as the textual similarities and differences with respect to Article 62, UCMJ, and
18 U.S.C. § 3731.” Id.

2. Comparing Article 62, UCMJ, and 18 U.S.C. § 3731

In relevant part, Article 62, UCMJ, states that the United States may appeal
“[a]n order or ruling of the military judge which terminates the proceedings with
respect to a charge or specification.” See art. 62(a)(1)(A), UCMJ.

By comparison, the relevant section of 18 U.S.C. § 3731 states that the United
States can appeal “a decision, judgment, or order of a district court dismissing an
indictment or information or granting a new trial after verdict or judgment, as to any
one or more counts, or any part thereof, except that no appeal shall lie where the
double jeopardy clause . . . prohibits further prosecution.”

As such, the plain language of 18 U.S.C. § 3731 appears to contain a
modifying clause – “or any part thereof” – that is not contained within Article 62,
UCMJ. The parties have not cited, and we have not yet found, any military case
squarely addressing this issue in the context of partial dismissals. On this point,
however, we find that a closer look at the federal case law and legislative history
regarding 18 U.S.C. § 3731 is illuminating.

In particular, 18 U.S.C. § 3731 did not contain the phrase “or any part
thereof” until 2002, and there is ample case law interpreting the prior statutory
language. Most notably, in Sanabria v. United States, the Supreme Court stated in a
footnote, “We agree with the Court of Appeals . . . that there is no statutory barrier
to an appeal from an order dismissing only a portion of a count.” 437 U.S. 54, 69
n.23 (1978). The Court analyzed the term “count” and determined that “Congress

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could hardly have meant appealability to depend on the initial decision of a
prosecutor to charge in one count what could also have been charged in two, a
decision frequently fortuitous for purposes of the interests served by § 3731.” Id.
The Court added, “To so rule would import an empty formalism into a statute
expressly designed to eliminate ‘[technical] distinctions in pleadings as limitations
on appeals by the United States.’” Id. (quoting H.R. Conf. Rep. No. 91-1768, p. 21
(1970)) (alteration in original); accord, S. Rep. No. 91-1296, p. 5 (1970). 5

Within its pleadings, the government provided citations to numerous federal
courts that reached the same conclusion regarding the previous version of 18 U.S.C.
§ 3731. See, e.g., United States v. Serafini, 167 F.3d 812, 814-16 (3d Cir. 1999);
United States v. Hill, 55 F.3d 1197, 1199-1200 (6th Cir. 1995); United States v.
Bloom, 149 F.3d 649, 652-54 (7th Cir. 1998); United States v. Martin, 733 F.2d
1309, 1310 (8th Cir. 1984); United States v. Marubeni America Corp., 611 F.2d 763,
764-65 (9th Cir. 1980); United States v. Oakar, 111 F.3d 146, 149-150 (D.C. Cir.
1997).

In fact, the primary precipitating event for the amendment to 18 U.S.C. §
3731 appeared to be the fact that, despite the language of Sanabria, “one federal
circuit court . . . held that [the statute] does not permit any government appeals from
the dismissal of only part of a count.” H.R. Rep. No. 107-685, at 188 (2002) (citing
United States v. Louisiana Pacific Corporation, 106 F.3d 345 (10th Cir. 1997)). To
this extent, “[t]he proposed amendment” was designed to “make clear that dismissals
of any part of a count are subject to appeal by the United States in appropriate
circumstances.” Id. In this vein, this amendment was meant to codify, not change,
the existing analysis of the majority of the circuit courts.

3. Jurisdiction of Partial Dismissals under Article 62, UCMJ

In light of the foregoing, we conclude that we have jurisdiction regarding
Specification 2 of Additional Charge I. While we acknowledge the textual
differences between the statutes, we find a natural syllogism between the Supreme

5
Writing separately, Justice Stevens explained he could not “join that portion of the
Court’s decision which states that the Criminal Appeals Act permits an appeal from
only a portion of a count,” and he referred to that portion of the opinion as “dictum.”
Sanabria, 437 U.S. at 78-80 (Stevens, J., concurring). Other courts, to include the
Seventh Circuit, have concluded, “Sanabria’s treatment of § 3731 was not dictum.
It was no stray remark or aside. It explains the Court’s rationale and thus is part of
the holding.” United States v. Bloom, 149 F.3d 649, 652-54 (7th Cir. 1998); see also
United States v. Serafini, 167 F.3d 812, 814-16 (3d. Cir. 1999) (stating the Tenth
Circuit “stands alone” in declining to follow the Sanabria majority).

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Court’s analysis of the phrase “count” in Sanabria and our required analysis of the
phrase “specification” in this case.

In our view, any attempt to distinguish these terms, particularly in light of
the extensive case law regarding the prior version of § 3731, would constitute the
same type of “empty formalism” rejected in Sanabria. 437 U.S. at 69 n.23. On this
point, we again note that the Sanabria majority (and the majority of federal circuit
courts) did not adopt the view of Justice Stevens that the previous version of § 3731
“clearly does not” permit an appeal “from only a portion of a count.” Id. at 80
(Stevens, J., concurring); see also note 5, infra.

We find this case is readily distinguishable from Jacobsen, in which this court
found a lack of jurisdiction related to a different clause of Article 62, UCMJ. In that
case, our superior court agreed that § 3731 was “instructive in some respects,” but
the government’s position “conflict[ed] with the language and structure of Article
62, UCMJ, and [our superior court’s] precedent.” 77 M.J. at 86-87. We do not find
the same degree of textual, structural, and precedential conflicts in this case.
Furthermore, unlike in Jacobsen, we find the federal case law provides useful
guidance towards analyzing the relevant predicate phrase in this case, and we have
not found a clear statement of legislative intent that would subvert our conclusion.
Id. at 84 n.4, 86-87.

After answering the jurisdictional question in the affirmative, we next address
the military judge’s ruling. 6

B. Whether the Military Judge Erred in Finding a Major Change

For the reasons outlined below, we find the military judge erred in concluding
the amendments constituted a major change. As such, and unlike our dissenting
colleague, we need not analyze the interplay between R.C.M. 603, R.C.M. 905, and
R.C.M. 907(b)(2)(B). Simply put, if there is no major change, then there is no
statute of limitations issue.

“Whether a change made to a specification is minor is a matter of statutory
interpretation and is reviewed de novo.” Reese, 76 M.J. at 300 (citing United States
v. Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016)).

6
Appellee also moved to dismiss this appeal based on an alleged violation of the
timelines from the Joint Rules of Appellate Procedure. In response, the government
provided several documents substantiating the process and timeline associated with
its appeal. Pursuant to our review of the record, we find no violation and deny
appellee’s motion to dismiss.

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R.C.M. 603(a) provides that “[m]inor changes in charges and specifications
are any except those which add a party, offenses, or substantial matter not fairly
included in those previously preferred, or which are likely to mislead the accused as
to the offenses charged.” Id. (quoting United States v. Moreno, 46 M.J. 216, 218
(C.A.A.F. 1997)). The R.C.M. 603(a) Discussion clarifies what constitutes a minor
change and includes, inter alia, “those [changes] necessary to correct inartfully
drafted or redundant specifications; to correct a misnaming of the accused; to allege
the proper article; or to correct other slight errors.”

R.C.M. 603(d) provides that, when “[c]hanges or amendments to charges or
specifications other than minor changes [are] made over the objection of the accused
. . . the charge or specification affected [must be] preferred anew.” See also Reese,
76 M.J. at 300-02. The plain language of R.C.M. 603(d) does not discuss prejudice,
and our superior court has overruled any precedent requiring a separate showing of
prejudice. Reese, 76 M.J. at 301-02.

For several reasons, we conclude the amendments in this case were minor.

First, the initial and amended specifications both alleged sexual assault by
penetrating AR’s vulva with the accused’s penis by bodily harm. In fact, as
amended, the alleged act of bodily harm was “penetrating [AR’s] vulva with [the
accused’s] penis.” Thus, it is hard to conclude the amended language was not
“fairly included” in the initial specification, as this language was already there.

Second, in Reese, the CAAF explicitly acknowledged that “changing the
means by which a crime is accomplished may constitute a slight error under the
appropriate circumstances.” Id. at 301 (citation omitted). To the extent that the
amendments in this case may have technically “[changed] the means by which [the]
crime was accomplished,” this case presents the type of “appropriate circumstances”
in which any such error would be “slight.” We simply do not see how the
amendments in this case added “a party, offenses, or substantial matter not fairly
included in those previously preferred.” R.C.M. 603(a).

Third, and relatedly, the amendments could hardly have “[misled] the accused
as to the offenses charged.” See id. Our superior court’s rationale in Reese is
important here. As part of its analysis, the court expressly noted the “question of
whether Reese was on notice that he would need to defend against a touching
charge” and found the government’s arguments on this issue to be “unconvincing.”
Reese, 76 M.J. at 301. Indeed, “[t]he evil to be avoided is denying the defendant
notice of the charge against him, thereby hindering his defense preparation.” Id. at
300 (citation omitted). In light of this analysis, it is clear that notice is still a
critical component of major change issues.

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In Reese, the government amended a specification from licking the victim’s
penis with appellant’s tongue to touching the penis with his hand, a change based on
the victim’s deposition two days before trial. One can plainly see how such a
change would negatively affect the defense’s approach and preparation for trial.

In the present case, we see no such hindrance. The government made the
changes months before trial. If the defense intended to offer that the penetration did
not occur, or that the acts were consensual, these avenues were not foreclosed by the
amended specifications. The government would still have to prove penetration and
lack of consent beyond a reasonable doubt, just as if the defense had offered these
theories on the initial specifications. In sum, there is no reason to conclude the
defense was deprived of notice or a reasonable opportunity to defend against the
amended specifications. 7

We do acknowledge that, in Reese, the CAAF explicitly held that R.C.M.
603(d) does not have a separate prejudice component. 76 M.J. at 301-02. That said,
we do not read Reese to negate the full language of R.C.M. 603(a). Specifically, in
our view, Reese does not preclude us from considering the likelihood of misleading
the accused in deciding whether a change is major in the first place. In fact, we read
Reese to encourage appellate courts to consider both “unfair surprise” and similar
concepts to avoid the underlying “evil” it identified: insufficient notice to the
accused.

CONCLUSION

The appeal of the United States pursuant to Article 62, UCMJ, is GRANTED
and the decision of the military judge is therefore SET ASIDE. We return the record
of trial to the military judge for action consistent with this opinion.

Senior Judge BURTON concurs.

7
We are keenly aware that our superior court is analyzing a related issue in United
States v. Stout, ARMY 20120592, 2018 CCA LEXIS 174 (Army Ct. Crim. App. 9
Apr. 2018) (mem. op.), rev. granted, 78 M.J. 93 (C.A.A.F. 2018). To the extent that
our superior court provides clarifying guidance that impacts this case, we stand
ready to re-examine our analysis.

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FLEMING, Judge, concurring in part and dissenting in part:

While I concur with the majority’s analysis of the jurisdiction issue, I
disagree with their conclusion that the amendments constituted a minor change.
Therefore, I respectfully dissent. As outlined below, I would find the military judge
did not err in: (1) concluding the amendments constituted a major change; (2)
determining that appellee did not waive the issue; and (3) rejecting the government’s
argument regarding Article 43(g), UCMJ.

1. Whether the Military Judge Erred in Finding a Major Change

Like the military judge, I would find the amendments constituted a major
change. In this case, the government changed the bodily harm language from
“removing [AR’s] underwear, placing his hands on her buttocks, and pressing her
down with his hands” to “penetrating [AR’s] vulva with his penis.” In analyzing
this issue, the military judge cited to Reese and concluded, in various parts of his
rulings, that “the manner of the offense was significantly changed,” “the change was
not fairly included in the original specification,” and the government no longer had
to prove “that the sexual act was caused by the [originally] charged actions.”

While this case is a closer call than Reese, I would similarly conclude that the
amendments constituted a major change. In particular, the changes “altered the
means of committing the offense.” Reese, 76 M.J. at 300. Based on the original
charge, the government had to prove offensive touchings beyond the alleged
penetration, and a potential defense would involve proving that such touchings did
not occur (or did not cause the sexual act). In my view, changing the bodily harm
from multiple overt offensive touchings to the sexual penetration itself does not
“constitute a slight error.” Id. at 301.

Furthermore, amending the specification created an additional element. The
military judge correctly noted the change required “the Government to now prove
[AR] did not consent” as an element. See United States v. McDonald, 78 M.J. 376
(C.A.A.F. 2019) (affirming three elements exist when the actus reus and the bodily
harm for the sexual assault are the same physical act); accord Dep’t of the Army,
Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 3-45-14 n.2 (10 Sep.
2014) (“When the same physical act is alleged as both the actus reus and bodily
harm for the charged sexual assault, include . . . a final [third] element.”). I cannot
agree with the majority opinion that an amendment, which changes the number of
elements for a specification, is minor in nature.

For the above reasons, I would find the military judge did not err in finding
the changes were major. This, however, does not end the analysis.

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The government has repeatedly pointed to the full language of R.C.M. 603(d),
which states that major changes “may not be made over the objection of the
accused.” (emphasis added). To be clear, I do not seek to diminish the importance
of this language, nor have I ignored its connection to R.C.M. 905. Under normal
circumstances, I would find that an accused is not entitled to relief based on an
untimely objection to an alleged major change. This case is not normal, as it
requires an additional analysis of R.C.M. 907(b)(2)(B).

Put another way, this issue cannot be analyzed in a vacuum. Instead, the
language of R.C.M. 603(d) must be considered within the broader context of R.C.M.
907(b)(2)(B), which places a separate, independent, and affirmative duty on the
military judge. Thus, while I acknowledge the untimely nature of the defense
objection, it simply does not impact the required analysis under R.C.M.
907(b)(2)(B).

2. Whether the Military Judge Erred in Finding Appellee Did Not Waive the Issue 8

At trial and on appeal, the government asserts that appellee waived his right
to object to the amendments and thus cannot assert the statute of limitations as a
defense. I disagree, for many of the reasons cited by the military judge.

More specifically, I would find the military judge correctly annotated the
breadth, scope, and uniqueness of R.C.M. 907(b)(2)(B). See, e.g., United States v.
Jesko, ARMY 20160439, 2018 CCA LEXIS 328, *5-8 (Army Ct. Crim. App. 29 Jun.
2018) (mem. op.) (explaining how the rule places an “affirmative responsibility” on
the military judge to determine that any potential waiver is knowing and voluntary).

At trial, the government argued that R.C.M. 907(b)(2)(B) was inapplicable
because appellee “tactically waived” his right to object. The military judge directly
addressed this argument in his ruling; among other things, the military judge stated

8
In their pleadings, the parties focus on waiver. I acknowledge there is another
potential argument that appellee forfeited this issue by failing to raise this claim
during trial. See United States v. Briggs, 78 M.J. 289 (C.A.A.F. 2019) (applying a
plain error review for a statute of limitations claim raised for the first time on
appeal). Under the facts of this case, I do not find this standard to be appropriate.
At a minimum, the military judge’s ruling can be properly construed as a
reconsideration of his earlier ruling during trial, which sua sponte addressed the two
specifications at issue. See United States v. Neal, 68 M.J. 289, 296 (C.A.A.F. 2010)
(explaining that until the record of trial is authenticated, the military judge “retains
control over a court-martial” and may reconsider prior rulings). Regardless, this
standard would not change my underlying analysis regarding R.C.M. 907(b)(2)(B).

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“it was clear the Defense was unaware of the right” and “[t]he Court has no doubt
that had the Defense been aware of the statute of limitations, they would have
objected, as evidenced by the fact that they lodged an objection to the other
specifications that they recognized did fall outside the statute of limitations.” The
military judge also said that “all counsel” overlooked the effective date of the
elimination of the statute of limitations. Nothing in the record contradicts these
conclusions.

In his ruling, the military judge also rejected the government’s arguments
regarding Musacchio and stated that R.C.M. 907(b)(2)(B) “places an affirmative
obligation upon the military judge to inform an accused of the right to assert the
statute of limitations in bar of trial, if it appears that the accused is unaware of this
right.” The military added that a “plain reading of this rule is that if the military
judge has not [informed the accused] when it is required, then the accused has not
waived his right to assert the defense.”

On this issue, our superior court’s recent opinion in United States v. Briggs is
highly instructive:

In Musacchio, the Supreme Court reasoned that 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.” Id. Accordingly, “[w]hen a
defendant does not press the defense, then, there is no
error for an appellate court to correct—and certainly no
plain error.” Id. The Supreme Court, however, made this
decision in the context of a federal criminal prosecution
governed by the Federal Rules of Criminal Procedure. We
think that cases under the Rules for Courts-Martial are
distinguishable. As indicated above, R.C.M. 907(b)(2)(B)
requires the military judge to inform the accused of the
right to assert the statute of limitations. The Federal
Rules of Criminal Procedure have no analogous provision.
Accordingly, in a court-martial, R.C.M. 907(b)(2)(B)
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.

United States v. Briggs, 78 M.J. 289, 295 (C.A.A.F. 2019) (emphasis added).

This rationale is strikingly similar to the analysis of Collins cited by the
military judge. Indeed, shortly following Briggs, our superior court affirmed the Air
Force Court’s decision in Collins in a one-sentence opinion. United States v.
Collins, __ M.J. __, 2019 CAAF LEXIS 231 (C.A.A.F. Mar. 12, 2019).

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Finally, while not dispositive to my analysis, the discussion section of R.C.M.
907(b)(2)(B) also supports the military judge’s ruling. This section states that “if
new charges are drafted or a major amendment made after the statute of limitations
has run, prosecution is barred.” See R.C.M. 907(b)(2)(B) discussion (internal
citation omitted). The inclusion of this language strongly implies that military
judges are required to identify and discuss such issues with an accused.

3. Whether the Military Judge Erred in Rejecting Appellant’s Article 43(g) Claim

At trial, the government also asserted that it was “not barred from prosecuting
[the amended specifications] because of [Article] 43(g).” Again, I disagree, for the
same reason provided by the military judge.

Article 43(g) provides a potential savings clause when “charges or
specifications are dismissed as defective or insufficient for any cause” and the
applicable statute of limitations “has expired” or “will expire within 180 after the
date of dismissal.” See UCMJ art. 43(g)(1) (emphasis added).

In his ruling, the military judge stated this clause “only [applies] to when
charges or specifications are dismissed as defective or insufficient,” and the
specifications in this case were “set aside based on [Hills] and an unconstitutional
application of [Mil. R. Evid.] 413.” The military judge noted the government
“believes that this equates to a dismissal due to defective specifications,” but “the
Court disagrees.” I do, too. The specifications at issue were never dismissed as
being defective or insufficient, and any attempt to apply Article 43(g) is trying to fit
a square peg into a round hole. 9

In conclusion, I would affirm the military judge’s ruling and thus dissent from
the majority opinion.

9
On appeal, the government also argues, “Even assuming the amendments to [the
specifications] constituted a major change . . . the receipt by the summary court-
martial convening authority of the original charge on 11 December 2013 tolled the
statute of limitations as to the amended charge.” Any such argument was largely
undeveloped at trial, and the government has cited to several cases that were not
presented to the military judge. However, even upon review, none of these cases
address a major change occurring after the expiration of the statute of limitations.

Finally, as the issue is not before us, I take no position over whether the government
can utilize Article 43(g) in seeking to re-prefer specifications that are dismissed
based on a major change occurring after the statute of limitations expires.

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FOR THE
FOR THE COURT:
COURT:

MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court

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