United States v. Lopez de Victoria

UNITED STATES, Appellee

v.

Eric LOPEZ de VICTORIA, Sergeant
U.S. Army, Appellant

No. 07-6004
Crim. App. No. 20061248

United States Court of Appeals for the Armed Forces

Argued November 14, 2007

Decided February 26, 2008

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, J., joined. RYAN, J., filed a dissenting
opinion in which ERDMANN, J., joined.

Counsel

For Appellant: Captain Nathan J. Bankson (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Teresa L. Raymond (on brief); Major Fansu Ku.

For Appellee: Captain James P. Leary (argued); Colonel John W.
Miller II, Lieutenant Colonel Steven P. Haight, and Captain
Larry W. Downend (on brief).

Amicus Curiae for Appellee: Colonel Gerald R. Bruce and Major
Matthew S. Ward (on brief).

Amicus Curiae: Captain Timothy M. Cox and Captain Anthony D.
Ortiz (on brief).

Military Judge: Richard J. Anderson

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lopez de Victoria, No. 07-6004/AR

Judge STUCKY delivered the opinion of the Court.

We granted review in this case to consider whether the

November 2003 amendment to the statute of limitations, Article

43(b), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

843(b) (2000), applies retroactively to offenses committed

before the amendment’s effective date. The Court specified an

additional issue: whether this Court has statutory authority to

exercise jurisdiction over decisions of the courts of criminal

appeals rendered pursuant to Article 62, UCMJ, 10 U.S.C. § 862

(2000). We answer the specified issue as to our jurisdiction in

the affirmative, but reverse the Court of Criminal Appeals on

the merits.

I.

Officer and enlisted court members convicted Appellant,

contrary to his pleas, of indecent acts and liberties with a

child between November 24, 1998, and June 1, 1999, and one

specification of making a false official statement, in violation

of Articles 107, 134, UCMJ, 10 U.S.C. §§ 907, 934 (2000). He

was acquitted of an additional specification of indecent acts

and one of assault, in violation of Article 128, UCMJ, 10 U.S.C.

§ 928 (2000). Court members sentenced Appellant to a

dishonorable discharge, reduction to E-1, forfeiture of all pay

and allowances, and confinement for four years.

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During the trial, the military judge sua sponte raised the

issue of whether the applicable statute of limitations barred

prosecution of some charges and specifications, but ruled that

it did not. Ultimately, in a post-trial session held pursuant

to Article 39(a), UCMJ, 10 U.S.C. § 839 (2000), the military

judge reversed himself and held that Appellant’s convictions for

indecent acts and liberties were barred by the statute of

limitations, in that the 2003 amendment to Article 43(b) of the

UCMJ did not retroactively extend to offenses committed before

the date of the amendment. Finding that Congress was silent on

whether the 2003 amendment was to be applied retroactively, he

ruled that in the absence of a “clear and unequivocal

declaration” of such application, it could only be applied

prospectively. The military judge accordingly set aside those

findings and ordered further sentencing proceedings with respect

to the remaining finding under Article 107, UCMJ.

The Government appealed under Article 62, UCMJ. The Army

Court of Criminal Appeals granted the appeal, holding that the

amendment to the statute applied retroactively and that the

post-trial proceedings could continue. United States v. Lopez

de Victoria, 65 M.J. 521 (A. Ct. Crim. App. 2007). Appellant

then petitioned this Court for review of the Court of Criminal

Appeals’ decision.

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While this Court was deciding whether to grant review,

Appellant moved this Court to stay all trial proceedings and

order him released from confinement. We denied that motion. On

August 2, 2007, the convening authority approved the adjudged

sentence, except for the forfeitures.

II.

Prior to 1983, there was no statutory provision for

interlocutory appeals by the government in courts-martial. Such

issues were reviewable only in the context of petitions for

extraordinary relief. See, e.g., Dettinger v. United States, 7

M.J. 216, 218 (C.M.A. 1979); West v. Samuel, 21 C.M.A. 290, 45

C.M.R. 64 (1972).

The Military Justice Act of 1983, Pub. L. 98-209 (1983),

amended Article 62 of the UCMJ to provide for a government

appeal of rulings by a military judge that terminated

proceedings with respect to a charge or specification or that

excluded evidence that was substantial proof of a material fact.1

The President, in his contemporaneous implementation of the Act,

expressly provided for appeal of adverse Article 62, UCMJ,

decisions to our Court, and from our Court to the Supreme Court.

R.C.M. 908(c)(3) (Manual for Courts-Martial, United States (MCM)

1
Article 62, UCMJ, was amended again in 1996 to provide for
interlocutory appeals of certain questions relating to
classified information. National Defense Authorization Act for

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(1984 ed.))2; see 28 U.S.C. § 1259(2), enacted as part of the

1983 Act (providing for discretionary Supreme Court review of

cases reviewed by a court of criminal appeals that the Judge

Advocate General orders sent to this Court for review).

Thereafter, we held that we had jurisdiction over a petition

filed by an appellant seeking review of an adverse decision by a

court of military review on a government appeal from a military

judge’s dismissal of a charge and specification on speedy trial

grounds. United States v. Tucker, 20 M.J. 52, 53 (C.M.A. 1985).

In its brief and argument on the specified issue, Appellee3

relies on a “plain meaning” analysis of Article 67, UCMJ, 10

U.S.C. § 867 (2000). Admitting that Article 67(a)(3)’s language

granting this Court jurisdiction over “all cases reviewed by a

court of criminal appeals in which, upon petition” is “arguably”

broad enough to grant this Court jurisdiction over such appeals,

Appellee points to Article 67(c), UCMJ, as fatal to

jurisdictional claims:

FY 1996, Pub. L. No. 104-106, § 1141(a), 110 Stat. 186, 467
(1996). The 1996 amendments are not at issue here.
2
Similar provisions are included in the current version of the
Manual. R.C.M. 908(c)(3) (Manual for Courts-Martial, United
States (MCM) (2005 ed.)).
3
We refer to “Appellee” rather than “Government” because there
is no unified position among the different government appellate
divisions in this case. In an amicus brief, the Air Force
argues that Tucker remains good law and that, at a minimum, this
Court has jurisdiction to hear Government appeals of Article 62,
UCMJ, decisions rendered by the courts of criminal appeals.

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In any case reviewed by it, the Court of Appeals for
the Armed Forces may act only with respect to the
findings and sentence as approved by the convening
authority and as affirmed or set aside as incorrect in
law by the Court of Criminal Appeals.

Article 67(c), UCMJ.

In this case, while the convening authority has now acted

on the findings and sentence, the Court of Criminal Appeals’

action was limited to this appeal. Because the Court of

Criminal Appeals has not acted upon the findings and sentence,

it is argued, this Court has no present jurisdiction over this

appeal.

This Court, like all federal courts, is a court of limited

jurisdiction. Clinton v. Goldsmith, 526 U.S. 529, 535 (1999);

13 Charles Alan Wright et al., Federal Practice and Procedure §

3522 (2d ed. 1984). That jurisdiction is conferred ultimately

by the Constitution, and immediately by statute. However, this

principle does not mean that our jurisdiction is to be

determined by teasing out a particular provision of a statute

and reading it apart from the whole. Since the beginning of

jurisprudence under the UCMJ, we have read the statutes

governing our jurisdiction as an integrated whole, with the

purpose of carrying out the intent of Congress in enacting them.

United States v. Best, 4 C.M.A. 581, 16 C.M.R. 155 (1954);

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United States v. Merritt, 1 C.M.A. 56, 1 C.M.R. 56 (1951).4

“[W]e believe it axiomatic that Article 67 must be interpreted

in light of the overall jurisdictional concept intended by the

Congress, and not through the selective narrow reading of

individual sentences within the article.” United States v.

Leak, 61 M.J. 234, 239 (C.A.A.F. 2005). In Leak, we declined to

read Article 67(c), UCMJ, in isolation as a substantive limit on

our jurisdiction because to do so “would defeat the overall

intent of Article 67 -- to grant this Court jurisdiction to

decide matters of law raised by appellants or certified by Judge

Advocates General.” Id. at 242. The same principle applies

here.

The statutory text expressly provides our Court with

jurisdiction over “all cases reviewed by a Court of Criminal

Appeals” upon certification by the Judge Advocate General,

Article 67(a)(2), UCMJ, or petition by the accused, Article

67(a)(3), UCMJ. Section 1259 of Title 28 provides the Supreme

Court with direct appellate jurisdiction over our decisions.

4
Although Appellee cites Best as authority for the proposition
that we are without jurisdiction in this case, that case does
not constitute such authority. Best was decided almost thirty
years before the enactment of the present Article 62, UCMJ, and
was a petition case, not involving either certification or an
extraordinary writ, the only avenues then available for
interlocutory appeals. It did not represent the state of the
law with respect to interlocutory matters at the time Congress
was considering the Military Justice Act of 1983. See infra p.

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These provisions further the statutory purpose of enacting a

“Uniform Code of Military Justice” in 1950 and the statutory

purpose of the Military Justice Act of 1983 in authorizing

direct Supreme Court review of decisions by appellate courts in

the military justice system. Appellee’s position -- that “all

cases” in Article 67(a), UCMJ, does not include interlocutory

appeals of adverse trial court rulings -- would defeat the

purposes of both statutes by precluding direct appeal of

disparate decisions by lower appellate courts.

The longstanding interpretation of the statutory text is

consistent with the legislative history of Article 62, UCMJ.

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, which permits appeals by the United States in federal

prosecutions.” S. Rep. No. 98-53, at 23 (1983). In United

States v. Wilson, 420 U.S. 332, 338-9 (1975), the Supreme Court

read § 3731 as expressing a desire “to authorize appeals

whenever constitutionally permissible. . . . [I]t seems

inescapable that Congress was determined to avoid creating

nonconstitutional bars to the Government’s right to appeal.”

Since government appeals in criminal cases in the Article III

11. Best was overruled as to its narrow jurisdictional holding
in United States v. Boudreaux, 35 M.J. 291 (C.M.A. 1992).

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courts are creations of statute no less than in this Court,

United States v. Sanges, 144 U.S. 310 (1892), the same principle

applies to Article 62, UCMJ, appeals.

The original bill introduced by Senator Roger Jepsen of

Iowa would have limited further review of court of criminal

appeals’ decisions to “post-trial proceedings.” S. 2521, 97th

Cong. § 3(v)(2) (1982). During the pendency of the legislation,

however, the Department of Defense and others opposed such a

limitation.5 The bill as passed contained no such limitation,

and the legislative history expressly addressed such appeals:

“Either party may appeal an adverse [Article 62 appeal] ruling

from the Court of Military Review to the Court of Military

Appeals.” S. Rep. No. 98-53, at 23 (1983). Moreover, the state

of the law at the time the Military Justice Act of 1983 was

enacted explicitly comprehended jurisdiction in the Court of

Military Appeals under Article 67, UCMJ, to review interlocutory

decisions by the courts of military review. United States v.

Redding, 11 M.J. 100, 104-06 (C.M.A. 1981). In other words,

Congress legislated against a judicial backdrop that already

provided for a broad reading of jurisdiction over “cases” in the

extraordinary writ context, whether arising through

5
See The Military Justice Act of 1982: Hearings on S. 2521
Before the Subcommittee on Manpower and Personnel of the Senate
Committee on Armed Services, 97th Cong., 2d Sess. 23, 97, 115,
201, 283 (1982).

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certification, as in Redding, or by petition, as in United

States v. Caprio, 12 M.J. 30, 30-33 (C.M.A. 1981). Thus,

Congress’ decision to permit appeals from either party in the

1983 Act was not a jurisdictional innovation, but an adaptation

of the existing Title 18 statute to replace the cumbersome

extraordinary writ procedure with a direct appeal procedure.

Our Court has exercised jurisdiction over direct government

appeals in interlocutory cases since the enactment of the

present Article 62, UCMJ, as has the Supreme Court. The

landmark case of Solorio v. United States, 483 U.S. 435 (1987),

in which the government appealed a military judge’s ruling

dismissing certain charges under the “service connection”

doctrine of O’Callahan v. Parker, 395 U.S. 258 (1969), is

instructive. The Court of Military Review reversed, United

States v. Solorio, 21 M.J. 512 (C.G.C.M.R. 1985), whereupon the

accused petitioned this Court for review. We affirmed the

decision of the Court of Military Review. United States v.

Solorio, 21 M.J. 251 (C.M.A. 1986). The Supreme Court granted

certiorari under 28 U.S.C. 1259(3), the provision authorizing

the Supreme Court to grant certiorari over cases in which this

Court “granted a petition for review under section 867(a)(3) of

title 10.” 28 U.S.C. 1259(3); Solorio, 483 U.S. at 438

(exercising its power under that statute). Article 67(a)(3),

UCMJ, authorizes this Court to review “all cases reviewed by a

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Court of Criminal Appeals” in which the accused’s petition

establishes good cause.

The Supreme Court granted certiorari, noting the

interlocutory nature of the appeal.6 Solorio, 483 U.S. at 437-

38. On certiorari, the Supreme Court not only agreed that the

military judge erred on the merits, but overruled O’Callahan.

Solorio, 483 U.S. at 436. Solorio mirrors the procedural

posture of the present case: an Article 62, UCMJ, Government

appeal to the service court of criminal appeals, followed by a

defense appeal to this court. Ultimate review of the question

was had on certiorari by the Supreme Court.

The subsequent decision in Clinton v. Goldsmith does not

stand for the proposition that the Supreme Court acted

improperly in reviewing our Article 62, UCMJ, decision in

Solorio. See Clinton v. Goldsmith, 526 U.S. 529, 535 (1999)

(referring to our Article 67(a), UCMJ, jurisdiction over cases

in which a finding or sentence “was (or could have been) imposed

in a court-martial proceeding,” as opposed to purely

administrative actions). The Article 62, UCMJ, posture of the

present case is one in which a finding or sentence “could have

been” imposed, and was in fact imposed. See also id. at 537

n.11 (citing Noyd v. Bond, 395 U.S. 683, 693-99 (1969), in which

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the Supreme Court discussed with approval our jurisdiction over

interlocutory matters).

Article 62, UCMJ, ensures that the Government has the same

opportunity to appeal adverse trial rulings that the prosecution

has in federal civilian criminal proceedings. The statutory

authority for review of all cases from the courts of criminal

appeals under Article 67(a)(2), UCMJ, and Article 67(a)(3),

UCMJ, with further review by the Supreme Court under 28 U.S.C. §

1259(3) fulfills one of the central purposes of the Uniform Code

of Military Justice -- uniformity in the application of the Code

among the military services. The decision in United States v.

Tucker, 20 M.J. 52 (C.M.A. 1985), and subsequent cases,

including the Supreme Court’s exercise of jurisdiction in

Solorio, ensures that cases will not be dismissed on the basis

of erroneous legal theories, and that the application of the law

will be uniform among the military departments. Cf. United

States v. Monett, 16 C.M.A. 179, 181, 36 C.M.R. 335, 337 (1966)

(stating that “Congress provided the certification process as a

means of achieving certainty in, and uniformity of,

interpretation of the Uniform Code in each armed force, as well

as for all the armed forces”). Accordingly, we affirm that

6
The Solicitor General had opposed certiorari on ripeness
grounds. Brief for the United States in Opposition at 14,
Solorio (No. 85-1581), 1986 U.S. S. Ct. Briefs LEXIS 1166.

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cases appealed under Article 62, UCMJ, may be reviewed under

Article 67(a), UCMJ.

III.

The indecent acts and liberties of which the Appellant was

convicted took place at various times between November 24,

1998, and June 1, 1999. When these acts were committed, the

applicable statute of limitations was five years, as provided in

Article 43(b)(1), UCMJ.

In 2003, Congress amended Article 43(b)(1), UCMJ, to except

from the general five-year statute certain listed “child abuse

offense[s],” listed in Article 43(b)(2)(B), UCMJ, including

indecent acts and liberties with a child. The statute of

limitations (SOL) for these offenses would expire when the child

reached the age of twenty-five years. National Defense

Authorization Act for FY 2004, Pub. L. No. 108-136, § 551, 117

Stat. 1392, 1481 (2003).7

The following is a chronology of the relevant events in

this case.

7
A further amendment in 2006, after the charges against
Appellant were received by the summary court-martial convening
authority, changed the limitation period to the greater of the
life of the child or five years after the offense. National
Defense Authorization Act for FY 2006, Pub. L. No. 109-163, §
553, 119 Stat. 3136, 3264 (2006). This amendment is not at
issue in this case.

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Date Event

Nov. 24, 1998 Beginning of period during which offenses
are alleged to have occurred

Jun. 1, 1999 End of period during which offenses are
alleged to have occurred

Nov. 24, 2003 Effective date of new SOL -- until child
reaches twenty-five

May 31, 2004 Expiration of five-year SOL for all alleged
indecent acts offenses

May 31, 2006 Receipt of charges by summary court-martial
convening authority8

In United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000),

we declined to apply the civilian child abuse statute of

limitations contained in 18 U.S.C. § 3283 to courts-martial.

Pointing out that the military and civilian systems of criminal

justice are separate as a matter of law and that, as such, great

caution should be exercised in judicial extension of general

statutes to the court-martial system, we examined the wording of

the statute and determined that it did not supplant Article 43,

UCMJ, as the applicable statute of limitations for child abuse

offenses under the UCMJ. McElhaney, 54 M.J. at 124-26; see also

United States v._Spann, 51 M.J. 89, 92-93 (C.A.A.F. 1999)

(holding that, in light of military justice system being

separate from federal criminal justice system, federal victims’

8
An accused is not liable to be tried by court-martial unless
the sworn charges are received by the summary court-martial

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rights statute did not apply to court-martial practice absent

affirmative action by the President).

In early 2003, Senator Bill Nelson of Florida, a member of

the Armed Services Committee, introduced a bill in response to

McElhaney to conform the military statute of limitations for

child sexual abuse offenses to the federal rule. S. 326, 108th

Congress (2003). The bill would have amended Article 43, UCMJ,

by incorporating by reference the provisions of 18 U.S.C. § 3283

for child abuse offenses tried under the UCMJ. At the time, §

3283 provided as follows: “No statute of limitations that would

otherwise preclude prosecution for an offense involving the

sexual or physical abuse of a child under the age of 18 years

shall preclude such prosecution before the child reaches the age

of 25 years.” Senator Nelson’s bill never became law.9

Instead, Congress chose to substantively amend Article 43,

UCMJ, by inserting into it a separate statute of limitations for

child abuse offenses devoid of reference to § 3283. National

Defense Authorization Act for FY 2004 (NDAA), Pub. L. No. 108-

136, § 551, 117 Stat. 1392, 1481 (2003).10 The new section of

convening authority within the prescribed limitations period.
See Article 43(b), UCMJ.
9
The Court of Criminal Appeals’ statement that “Congress
incorporated Senator Nelson’s language into the . . . Act,”
Lopez de Victoria, 65 M.J. at 526, mischaracterizes what
Congress did.
10
Section 3283 is referred to in the Senate report, but the
reference provides no enlightenment as to the temporal

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Article 43, UCMJ, provided as follows: “A person charged with

having committed a child abuse offense against a child is liable

to be tried by court-martial if the sworn charges and

specifications are received before the child attains the age of

25 years by an officer exercising summary court-martial

jurisdiction with respect to that person.” Article 43(b)(2)(A),

UCMJ. The NDAA and the accompanying report are silent on

whether Congress intended the amendment to apply prospectively

or retroactively.

While Congress certainly possesses the constitutional

authority to apply legislation retroactively, subject to the

limits of the Ex Post Facto Clause, U.S. Const. Art. I, § 9, cl.

3, retroactive application of statutes is normally not favored

in the absence of explicit language in the statute or necessary

implication therefrom. Bowen v. Georgetown Univ. Hosp., 488

U.S. 204, 208-09 (1988); Greene v. United States, 376 U.S. 149,

160 (1964); United States v. Magnolia Petroleum Co., 276 U.S.

160, 162-63 (1928); 2 Norman J. Singer, Statutes and Statutory

Construction § 41.4 at 387 (6th ed. 2001). This principle

applies to statutes of limitations. See also Fordham v. Belcher

Towing_Co., 710 F.2d 709, 710-11 (11th Cir. 1983); 3A Norman J.

Singer, supra, § 72.3 at 709.

application of the amendment. S. Rep. No. 108-46, at 317
(2003).

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In Stogner v. California, 539 U.S. 607 (2003), the Supreme

Court held that a criminal prosecution for child abuse offenses

under a statute purporting to revive offenses that were barred

at the time of the statute’s enactment violated the Ex Post

Facto Clause of the Constitution. Id. at 609. The Court

declined to address whether a statute extending an unexpired

statute of limitations (as is the case here) ran afoul of the

clause.11 Id. at 618. Still, that is not the question before

us.

What is before us is a question of statutory construction,

which is a question of law to be decided de novo. United States

v. Falk, 50 M.J. 385, 390 (C.A.A.F. 1999). As noted above, both

the 2003 statute amending Article 43, UCMJ, and its legislative

history are silent as to whether Congress intended it to apply

retroactively to cases such as this, or only to cases in which

the offense occurred after the effective date of the statute.

We are cognizant of the recent federal cases interpreting

18 U.S.C. § 3283 as applying retroactively to cases in which the

11
The 2005 amendment to the Analysis of the R.C.M. 907(b)(2)
discusses the changes to the statute of limitations in light of
Stogner, as follows: “The referenced case permits unexpired
periods to be extended by the new statute, but does not allow
the statute to renew an expired period.” 70 Fed. Reg. 60708
(Oct. 18, 2005). As discussed infra, Stogner dealt with a
different statute. Furthermore, the Supreme Court merely stated
that its decision did not affect federal appellate court
decisions that had “upheld extensions of unexpired statutes of

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statute became effective before the previous limitation had

expired on the accused’s conduct. See, e.g., United States v.

Chief, 438 F.3d 920, 923-24 (9th Cir. 2006); United States v.

Jeffries, 405 F.3d 682, 684-85 (8th Cir. 2005). But § 3283’s

predecessor, 18 U.S.C. § 3509(k), did not just change the

previous statute of limitations by increasing the term of the

limitation period, as was done with Article 43, UCMJ; instead,

§ 3509(k), later recodified as § 3283, precluded the previous

limitation from applying. That is some evidence that Congress

intended § 3283 to apply retroactively. There was also some

legislative history supporting such a conclusion. Chief, 438

F.3d at 924. In contrast, neither the language of Article 43,

UCMJ, nor the legislative history provide any evidence that

Congress intended Article 43(b)(2)(A), UCMJ, to apply

retroactively.

Appellee argues that the fact that Congress entitled the

amendment “Extended limitation period for prosecution of child

abuse cases in courts-martial” evinces an intent to extend the

period to cases such as this. Catchlines or section headings

such as this are not part of a statute. They cannot vary its

plain meaning and are available for interpretive purposes only

if they can shed light on some ambiguity in the text. Bhd. of

limitations.” Stogner, 539 U.S. at 618. In any event, this is
a matter of statutory construction that we decide de novo.

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R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29

(1947). Here, however, the text of the statute is not

ambiguous; it is silent. It is the section heading itself that

is ambiguous. The amendment ipso facto provides an “extended

limitation period,” from five years to the date the child

reaches the age of twenty-five. The wording of the section

heading could apply with equal force to a purely prospective

extension or a retrospective one. That being the case, it is of

no assistance in determining the intent of Congress.

It is also urged that statutes of limitation are

“procedural” statutes as opposed to “substantive” ones, and that

changes in such statutes are not subject to the presumption

against retroactivity that applies to substantive changes in

law. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 275

nn.28, 29 (1994). This would be at odds with our longstanding

approach to construction of such statutes, which has been to

look at each statute as a whole, considering its language,

legislative history, the canons of statutory construction,

applicable Supreme Court decisions, and the congressional intent

to create and maintain a separate system of military justice --

without regard to categorizations such as “procedural.” See,

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e.g., McElhaney, 54 M.J. at 124-26. We decline to engage in

such an approach.12

Considering the lack of any indication of congressional

intent to apply the 2003 amendment retrospectively to cases such

as this, the general presumption against retrospective

legislation in the absence of such an indication and the general

presumption of liberal construction of criminal statutes of

limitation in favor of repose, we decline to extend the reach of

the 2003 amendment to Article 43, UCMJ, to cases which arose

prior to the amendment of the statute.

IV.

The decision of the United States Army Court of Criminal

Appeals is reversed. The specifications of Charge I and Charge

I are dismissed. The record of trial is returned to the Judge

Advocate General of the Army for referral to the convening

authority to order a sentence rehearing.

12
Moreover, even if one attempted to categorize statutes of
limitation as “procedural,” the holding in Stogner v. California
suggests that they are “substantive.” If revival of a time-
barred prosecution by an extending statute violates the Ex Post
Facto Clause, then the statute itself cannot be merely
procedural. Stogner, 539 U.S. at 611-16.

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RYAN, Judge, with whom ERDMANN, Judge, joins (dissenting):

In Clinton v. Goldsmith, the Supreme Court stated that this

Court’s “independent statutory jurisdiction is narrowly

circumscribed.” 526 U.S. 529, 535 (1999). This statement

reaffirms the well-established rule that, “Article I courts are

courts of special jurisdiction created by Congress that cannot

be given the plenary powers of Article III courts. The

authority of the Article I court is not only circumscribed by

the [C]onstitution, but limited as well by the powers given to

it by Congress.” In re United Missouri Bank of Kansas City,

N.A., 901 F.2d 1449, 1451-52 (8th Cir. 1990) (internal citation

omitted). I dissent in this case because neither Article 62,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2000)

nor Article 67, UCMJ, 10 U.S.C. § 867 (2000), nor any other

statute provides for an appeal of an Article 62, UCMJ, appeal to

this Court. This Court does not have the power to act unless

Congress has given it statutory authority to do so: in my view

the intent of Congress or the President, to the extent it is not

enacted in a statute and is facially inconsistent with another

statute, is not sufficient.

Article 62(a)(1), UCMJ, affords the Government the right to

appeal certain specifically identified trial rulings by the

military judge. Article 62(b), UCMJ, provides that this

Government right to appeal is to the Court of Criminal Appeals
United States v. Lopez de Victoria, 07-6004/AR

(CCA). Article 62, UCMJ, gives jurisdiction to the CCA to act

on a Government appeal and nothing more.

“[W]hen the statute’s language is plain, the sole function

of the courts -- at least where the disposition required by the

text is not absurd -- is to enforce it according to its terms.”

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530

U.S. 1, 6 (2000) (citations and quotation marks omitted). The

plain language of Article 62, UCMJ, does not mention this Court

or implicate Article 67, UCMJ. Nothing in the text of Article

62, UCMJ, provides this Court jurisdiction to entertain an

appeal from a decision of a CCA based on Article 62, UCMJ.1

Article 67(a)(2) and (3), UCMJ, states the subject matter

jurisdiction of this Court extends to cases specified by the

Judge Advocates General or cases reviewed by the CCA “upon

petition of the accused and on good cause shown . . . .”

Article 67(a), UCMJ, does not mention or implicate Government

appeals pursuant to Article 62, UCMJ, as cases within this

Court’s jurisdiction. In light of this, it is not at all clear

to me how it is possible, as the majority asserts, to discount

the import of Article 67(c), UCMJ, on the jurisdiction of this

1
Nor is United States v. Wilson to the contrary -- it is not a
case involving jurisdiction, let alone a case involving this
Court’s jurisdiction. Rather, it stands only for the more
general proposition that the availability of a Government appeal
from an adverse trial ruling should be available to the extent
permissible under the Constitution generally and the double
jeopardy clause in particular. 420 U.S. 332, 338-39 (1975).

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Court. Article 67(a), UCMJ, must be read in conjunction with

the remainder of the statute, including Article 67(c), UCMJ.

See, e.g., Doe v. Chao, 540 U.S. 614, 630-31 (2004) (“It is a

cardinal principle of statutory construction that a statute

ought, upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be superfluous,

void, or insignificant.”) (citations and quotation marks

omitted); United Sav. Ass’n v. Timbers of Inwood Forest Assoc.,

Ltd., 484 U.S. 365, 371 (1988) (stating that statutory

construction is a “holistic endeavor”). And Article 67(c),

UCMJ, states in relevant part, “[i]n any case reviewed by it,

the Court of Appeals for the Armed Forces may act only with

respect to the findings and sentence as approved by the

convening authority and as affirmed or set aside as incorrect in

law by the Court of Criminal Appeals.”

By its very nature, an appeal of an Article 62, UCMJ,

appeal is interlocutory: there has been no findings, no

sentence, and no convening authority action. In Goldsmith the

Supreme Court reaffirmed the principle that this Court can “act

only with respect to the findings and sentence as approved by

the convening authority and as affirmed or set aside as

incorrect in law by the [CCA].”2 526 U.S. at 534 (citing Article

2
The Majority cites to Goldsmith and notes that this Court has
“Article 67(a) jurisdiction over cases in which a finding or

3
United States v. Lopez de Victoria, 07-6004/AR

67(c), UCMJ). There is no statutory explanation as to why the

instant case is exempted from either Article 67(c), UCMJ, or the

Supreme Court’s reading of that statutory provision to limit our

jurisdiction to the express terms of the statute.3 It is thus

unclear to me how this Court has jurisdiction under Article

67(c), UCMJ, to take action with regard to a ruling that is not

itself part of the findings or adjudged sentence and has not

been approved by the convening authority.

Congress clearly expressed this Court’s jurisdiction under

Article 67, UCMJ, and said nothing about this Court in Article

62, UCMJ. In examining Articles 62 and 67, UCMJ, together, we

must be mindful that the Supreme Court has consistently held

that “[where] Congress includes particular language in one

section of a statute but omits it in another section . . . it is

sentence ‘was (or could have been) imposed in a court-martial
proceeding.’” United States v. Lopez de Victoria, ___ M.J. ___
(11) (C.A.A.F. 2007) (quoting Goldsmith, 526 U.S. at 535). Of
course, in Goldsmith the Supreme Court addressed the application
of the All Writs Act, 28 U.S.C. § 1651 (2000), in light of the
limited jurisdictional scope of Article 67, UCMJ. Goldsmith
said nothing about the relationship between Articles 62 and 67,
UCMJ, the question before us today. While it may well be that
the precise issue in this case could have been brought as an
extraordinary writ pursuant to the All Writs Act and Article 67,
UCMJ, that is not the procedural posture of this case.
3
Contrary to the assertion of the Majority, neither the holding
nor reasoning in United States v. Leak, invites a different
reading of Article 67(c), UCMJ. See 61 M.J. 234, 239 n.2
(C.A.A.F. 2005) (distinguishing between this Court’s “review” of
cases under Article 67(a), UCMJ, and the limitation on its power
to “act” under Article 67(c), UCMJ). In this case, the Court
“acts.”

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United States v. Lopez de Victoria, 07-6004/AR

generally presumed that Congress acts intentionally and

purposely in the disparate . . . exclusion.” Russello v. United

States, 464 U.S. 16, 23 (1983) (citation omitted); see also

Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (finding

that the use of a phrase in one part of a statutory scheme “only

underscores our duty to refrain from reading a phrase into the

statute when Congress has left it out” of another section). We

are obliged to presume that Congress gave appellate jurisdiction

over Article 62, UCMJ, Government appeals to the CCAs alone.

The majority makes the opposite presumption, expanding this

Court’s Article 67, UCMJ, jurisdiction to matters that do not

fall within Article 67(c), UCMJ, by reference to the legislative

history of Article 62, UCMJ. See Lopez de Victoria, __ M.J. __

(7-10). This is unfounded for two reasons. First, when “the

provisions of [a statute] are clear and unequivocal on their

face . . . [there is] no need to resort to the legislative

history.” United States v. Oregon, 366 U.S. 643, 648 (1961).

The plain text of Article 62, UCMJ, only gives the CCA

jurisdiction over Government appeals, and the plain text of

Article 67(c), UCMJ, permits this Court to “act only with

respect to the findings and sentence as approved by the

convening authority and as affirmed or set aside as incorrect in

law by the Court of Criminal Appeals.” See Goldsmith, 526 U.S.

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United States v. Lopez de Victoria, 07-6004/AR

at 534. Therefore, it is inappropriate to look to legislative

history at all.

Second, the majority’s reliance on legislative history

relating to Article 62, UCMJ, to construe Article 67, UCMJ, a

statutory provision adopted thirty-three years earlier, is

misplaced. “We have observed on more than one occasion that the

interpretation given by one Congress (or a committee or Member

thereof) to an earlier statute is of little assistance in

discerning the meaning of that statute.” Public Employees

Retirement Sys. v. Betts, 492 U.S. 158, 168 (1989); see also

United States v. Price, 361 U.S. 304, 332 (1960) (noting the

danger of using post-enactment legislative history because “the

views of a subsequent Congress form a hazardous basis for

inferring the intent of an earlier one”); Abner J. Mikva & Eric

Lane, An Introduction to Statutory Interpretation and the

Legislative Process 39 (1997) (“Postenactment explanations of

legislative meaning would seem absolutely taboo.”).

Nor is the fact that Solorio v. United States, 483 U.S. 435

(1987) originated in a Government appeal “instructive.” Lopez

de Victoria, __ M.J. __ (10). Neither the pleadings of the

parties, the granted issue in that case, nor the opinion of the

Supreme Court identified or raised any issue related to the

procedural history in that case as it related to this Court’s

jurisdiction. While the opinion addressed an important

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United States v. Lopez de Victoria, 07-6004/AR

jurisdictional theory regarding the scope of court-martial

subject matter jurisdiction, there was neither discussion of nor

a decision on the present jurisdictional issue.

Finally, while I agree that United States v. Tucker, 20

M.J. 52 (C.M.A. 1985), held that this Court has jurisdiction in

Article 62, UCMJ, appeals to the lower court, reliance on it is

misplaced. First, the initial justification given for the

finding of jurisdiction in Tucker was this Court’s reliance on

older cases, cases that asserted this Court was responsible for

supervising all facets of military justice. 20 M.J. at 53

(citing United States v. Caprio, 12 M.J. 30, 32 (C.M.A. 1981),

and United States v. Redding, 11 M.J. 100, 103-06 (C.M.A. 1981).

Of course, the Supreme Court in Goldsmith rejected this view.

526 U.S. at 536 (“the CAAF is not given authority, by the All

Writs Act or otherwise, to oversee all matters arguably related

to military justice, or to act as a plenary administrator even

of criminal judgments it has affirmed”). The Tucker Court did

not have the Supreme Court’s guidance on this point when they

relied on the notion in Caprio and Redding of plenary authority

over military justice. In my view, in light of Goldsmith, these

cases are too slender a reed upon which to rest jurisdiction.

Moreover, the only other justification given for the Court’s

holding in Tucker -– that we can base jurisdiction on

Congressional intent as reflected in the legislative history of

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United States v. Lopez de Victoria, 07-6004/AR

Article 62, UCMJ, as discussed above -- does not provide a

satisfying substitute for statutory jurisdiction. See supra pp.

5-6.

It is certainly plausible that the majority’s reading of

legislative history is correct, and that, as it asserts, the

members of the Senate Committee on Armed Services of the 97th

and 98th Congress intended to permit this Court to review the

decisions of a CCA addressing a Government Article 62, UCMJ,

appeal. And I do not disagree that, as a matter of legal

policy, immediate review of an Article 62, UCMJ, appeal by this

Court could be the most expeditious course of action. But

congressional intent and expediency are not sufficient to confer

jurisdiction, and nothing in either Article 62 or 67, UCMJ,

expressly gives this Court the power to review cases in the

procedural posture of this case. The Supreme Court in Goldsmith

made clear that Congress must give this Court a statutory grant

of authority to act. 526 U.S. at 535. There is no statutory

grant of jurisdiction here, and no reason Congress cannot amend

our statutorily conferred jurisdiction in order to achieve the

result the majority asserts Congress and the President intended.

I respectfully dissent.

8