IN THE CASE OF
UNITED STATES, Appellee
v.
David R. THOMPSON, Sergeant First Class
U.S. Army, Appellant
No. 03-0361
Crim. App. No. 20000342
United States Court of Appeals for the Armed Forces
Argued December 10, 2003
Decided May 5, 2004
EFFRON, J., delivered the opinion of the Court, in which
GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed
a dissenting opinion.
Counsel
For Appellant: William E. Cassara, Esq. (argued); Colonel
Robert D. Teetsel and Captain Lonnie J. McAllister, II (on
brief); Lieutenant Colonel E. Allen Chandler, Jr. and Major
Sean S. Park.
For Appellee: Captain Janine Felsman (argued); Colonel Lauren
B. Leeker, Lieutenant Colonel Margaret B. Baines and Major
Natalie A. Kolb (on brief).
Military Judge: K. H. Clevenger
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Thompson, No. 03-0361/AR
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer and enlisted
members, Appellant was convicted, contrary to his pleas, of
indecent acts or liberties with a child, in violation of Article
134, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. § 934 (2000). He was sentenced to confinement for four
years and reduction to the lowest enlisted grade. The convening
authority approved these results, and the Court of Criminal
Appeals affirmed in an unpublished opinion.
We granted Appellant’s petition for review under Article
67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3)(2000).1 For the reasons
set forth below, we hold that the military judge committed
1
We granted review of three issues:
I. WHETHER THE MILITARY JUDGE ERRED AS A
MATTER OF LAW WHEN HE REFUSED TO DISMISS THE
CHARGE AND ITS SPECIFICATIONS AS BEING
OUTSIDE THE STATUTE OF LIMITATIONS.
II. WHETHER THE MILITARY JUDGE ERRED AS A
MATTER OF LAW WHEN HE REFUSED TO POLL THE
MEMBERS AS TO WHETHER IT WOULD BE HELPFUL
FOR THEM TO KNOW THE APPROXIMATE DATE THAT
THE ALLEGED INDECENT ACT OCCURRED.
III. WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE REFUSED TO STRIKE THE
PRESIDENT OF THE PANEL AFTER IT WAS REVEALED
THAT THE PRESIDENT WAS PASSING NOTES TO A
JUNIOR MEMBER THAT DEMONSTRATED THE
PRESIDENT’S INHERENT BIAS AGAINST APPELLANT.
2
United States v. Thompson, No. 03-0361/AR
prejudicial error in his rulings related to the applicable
statute of limitations.
I. BACKGROUND
Appellant was charged with one specification of rape. The
panel at Appellant’s court-martial determined that he was not
guilty of rape, but was guilty of a lesser-included offense,
indecent acts with a child.
At the time of Appellant’s trial, the offense of rape could
be tried at any time without limitation, while the offense of
indecent acts was subject to a five-year statute of limitations.
Article 43, UCMJ, 10 U.S.C. § 843 (2000); Willenbring v.
Neurauter, 48 M.J. 152 (C.A.A.F. 1998); United States v.
McElheney, 54 M.J. 120 (C.A.A.F. 2000).2 The present appeal
concerns the responsibilities of the military judge when
confronted by evidence that implicates the statute of
limitations applicable to a lesser-included offense.
1. Preferral and referral of charges
The charge sheet in the present case contained a single
2
The subsequent amendment of Article 43(b) in the National
Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-
136, § 551, 117 Stat. 1392 (2003) (extending the statute of
limitations for certain child abuse offenses) is not at issue in
the present appeal. Cf. Stogner v. California, 539 U.S. 607
(2003).
3
United States v. Thompson, No. 03-0361/AR
specification alleging that Appellant “did, at or near
Glattbach, Germany, Fort Irwin, California, and Fort Knox,
Kentucky, on divers occasions on or between 1 September 1992 and
1 March 1996, rape [his stepdaughter], a person who had not
attained the age of 16 years.” The summary court-martial
convening authority received the charge sheet on January 3,
2000. Following consideration by superior convening
authorities, the charge and its specification were eventually
referred for trial by general court-martial.
2. Trial on the merits
Appellant’s stepdaughter, Ms. B, who was 20 years old at
the time of trial, testified that Appellant had abused her
sexually from age 5 through age 15. She stated that Appellant
began touching her sexually in October 1985, about a year after
her mother married Appellant. At that time, the family resided
in Glattbach, Germany, where Appellant was stationed until
February 1986. She added that the sexual touching progressed to
anal sodomy during the family’s stay in Germany.
Appellant was transferred to Fort Polk, Louisiana, in
February 1986, where he served until January 1989, accompanied
by his family. Ms. B testified that the sexual abuse continued
during this period. In January of 1989, Appellant was
reassigned to Germany, and the family returned to Glattbach.
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United States v. Thompson, No. 03-0361/AR
Ms. B said that the sexual abuse continued, including an
unsuccessful attempt at vaginal intercourse.
Appellant and his family subsequently relocated to Fort
Irwin, California, where Appellant was stationed from March 1992
until June 1995. According to Ms. B, Appellant engaged in
vaginal intercourse with her during this period. She testified
that she did not tell anyone about the sexual abuse because
Appellant threatened “he would have the MP’s come and take
everything away from [her],” and that he would “put [her] in a
home for bad kids.” Appellant moved with his family to Fort
Knox, Kentucky, in June 1995. Ms. B stated that the acts of
sexual intercourse continued until March 1996, when all sexual
contact between her and Appellant ceased.
Three and one-half years later, in September 1999, Ms. B
reported Appellant’s actions to law enforcement authorities.
According to her testimony at a pretrial hearing in the present
case, she decided to make the September 1999 report because she
feared that her younger brother might be subjected to the same
abuse.
Additional evidence presented by the prosecution included
the testimony of Ms. B’s former boyfriend, to whom she revealed
the alleged sexual abuse in 1996, and an expert witness who
testified that Ms. B’s description of the alleged sexual abuse
that she suffered was consistent with cases of similar child
5
United States v. Thompson, No. 03-0361/AR
sexual abuse. The prosecution also introduced the deposition
testimony of Ms. B’s younger sister, Ms. NT, concerning an
incident when they lived at Fort Irwin. In the deposition, Ms.
NT stated that she had walked into a room and saw Ms. B kneeling
on the floor while Appellant, with his pants down, kneeled
behind her. Ms. NT recanted her deposition testimony at trial,
claiming that she was pressured into making it by Ms. B and Ms.
B’s then-current boyfriend. The prosecution presented two
witnesses, a social worker and an investigator, Sergeant First
Class (SFC) Underwood, to whom Ms. NT had made statements
similar to her deposition testimony.
The defense position was that the alleged abuse did not
occur, and that Ms. B’s promiscuity served both as a motive to
lie and as an explanation for her knowledge of sexual conduct.
Appellant’s wife and his mother-in-law each testified that
Appellant had not sexually abused Ms. B. The defense also
presented witnesses who testified to Appellant’s good character,
reputation, and performance in the line of duty. In closing
argument, trial defense counsel stressed that there was no
corroboration for Ms. B’s allegations and suggested that her
promiscuity provided a motive to fabricate accusations against
Appellant.
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United States v. Thompson, No. 03-0361/AR
3. Instructions on findings
As the presentation of evidence drew to a close, the
military judge discussed proposed instructions with the parties
in a session under Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2000). The Government requested that the military judge
instruct the members that they could consider two lesser-
included offenses, carnal knowledge under Article 120 and
indecent acts with a child under Article 134. The defense
objected. With respect to the Article 134 offense, the defense
argued that the rape charge did not put the defense on notice
that they would have to defend against the facts elicited by the
Government pertinent to the specific offense of indecent acts
with a child. The defense also contended that the Government
had not introduced any evidence on the element under Article 134
that the alleged lesser-included offense was prejudicial to good
order and discipline. The military judge rejected the defense
objection.
After counsel for both parties concluded their closing
arguments on findings, the military judge instructed the members
as to the elements of the rape charge and the two lesser-
included offenses. With respect to indecent acts with a child,
the instructions included the following:
Now, the court is further advised that
the offense of indecent acts or liberties
with a child is also a lesser-included
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United States v. Thompson, No. 03-0361/AR
offense in this case. In this instance it’s
a lesser-included offense of carnal
knowledge.
. . . .
. . . And in order to find the accused
guilty of this lesser-included offense, that
is, indecent acts with a child, you must be
convinced by legal and competent evidence
beyond a reasonable doubt of the following .
. . elements.
. . . .
That at or near Glattbach, Germany,
Fort Irwin, California, and Fort Knox,
Kentucky, on divers occasions, on or between
the 1st of September 1992 and 1st of March
1996, the accused committed certain acts
upon the body of [Ms. B], by touching her
private parts.
. . . .
That at the time of the alleged acts .
. . [Ms. B] was a female under the age of 16
years.
. . . .
That the acts of the accused were
indecent . . . .
. . . .
That [Ms. B] was a person not the
spouse of the accused . . . .
. . . .
That the accused committed the acts
with intent to arouse or gratify the lust or
sexual desires of the accused and [Ms B].
. . . .
8
United States v. Thompson, No. 03-0361/AR
[And] [t]hat under the circumstances
the conduct of the accused was to the
prejudice of good order and discipline in
the armed [forces], or was of a nature to
bring discredit upon the armed forces.
4. Developments during deliberations concerning the statute of
limitations
After the military judge completed his instructions, the
members began their deliberations on findings. While the
members were deliberating, the military judge held a number of
conferences with the parties under Rule for Courts-Martial 802
[hereinafter R.C.M.], and Article 39(a). During one conference
pursuant to R.C.M. 802, the trial counsel notified the military
judge of concerns about the statute of limitations with respect
to the lesser included offenses. This led to several highly
technical discussions as the military judge belatedly
encountered a series of complexities resulting from the failure
to address the statute of limitations prior to instructing the
panel on findings.
The first Article 39(a) session that considered the statute
of limitations included the following interchange between the
military judge, trial counsel and civilian defense counsel:
MJ: Now, then, before we came back on the
record we had an 802 conference and we
talked about two issues.
The first was a concern raised by the
Government, quite properly, and that is; if
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United States v. Thompson, No. 03-0361/AR
there is a lesser-included offense finding,
that is, a finding as to an offense other
than rape, there could be a statute of
limitations problem.
And the issue is, obviously, that under
Article 43, the statute is [tolled] as to
the death penalty offense of rape, and not
as to the lesser-included offense of carnal
knowledge and indecent acts. And, my
calculation would be the -- the [tolling]
point would be the 2nd of January 1995;
because the charges were received by the
summary court-martial convening authority on
the 3rd of January 2000. So that would mark
the five-year time period that the statute
would bar offenses committed before the 2nd
of January 1995.
I had suggested to the parties that it
would be an appropriate defense to raise
against that, and the timing of it would be
very awkward. And, the Government,
apparently would not resist that in any way,
and that the proper solution would be, that
if the members returned a finding of a
lesser-included offense, that included a
time period before 1 -- Excuse me. --
before the 2nd of January 1995.
But, after that date, up until the
charged date of 1 March 1996, . . . then the
proper solution would be on a motion from
the defense to exclude that portion of the
finding barred by the statute of
limitations. Without Government objection I
would grant a motion, and order the
specification thus amended.
As near as I know, I haven't -- I
don't recall seeing that in the law, but I
see no reason why that would be an
inappropriate process. Is that both a fair
summary of what we talked about as to that
matter, and would there be any objection to
proceeding that way should it become
necessary; Government?
10
United States v. Thompson, No. 03-0361/AR
TC: That is a fair summary, Your Honor, and
there would be no objection.
MJ: Okay.
Defense, I will give you a full
opportunity to both consider and research
the question if you'd like. I don't require
you to answer immediately. But, if you have
any ideas about it, I would be glad to
listen.
CDC: (A), we concur it's a fair summary; and
(B), the only -- We are confident that it
is possible and proper to do this since we
are aware of case law allowing the military
judge to enter findings after the panel has
returned, in cases where there are
inconsistent findings or otherwise, and we
see it as being a similar analysis. The
only penny-pinching we would do is whether
it's the 2nd, or the 3rd, the 4th of
January, and we'll look into that, Your
Honor.
MJ: Absolutely. Mine was the first cut on
the timing. Somebody with a calendar can do
a lot better, and I have not made any
decision about that. We will await the
event. But, at least we know what we are
talking about should it occur.
While the military judge and the parties engaged in these
discussions, the members continued their closed deliberations.
The members subsequently interrupted their deliberations and
returned to the courtroom on three separate occasions. The
first interruption occurred when the military judge, in response
to an inquiry from the members, provided instructions on the
11
United States v. Thompson, No. 03-0361/AR
distinction between rape and carnal knowledge. At that time,
the military judge also gave the members further instructions on
the offense of indecent acts. Later, the members asked to
rehear Ms. NT’s testimony about the incident she witnessed at
Fort Irwin, as well as Ms. B’s testimony about the same subject.
The military judge permitted the members to rehear Ms. NT’s
testimony, and advised them that there was no testimony about
that incident by Ms. B. Finally, the members asked if they
could rehear the testimony of SFC Underwood because they
believed that his testimony was “the only available evidence,
other than [Ms. NT]’s deposition, [that could] illuminate the
critical issue of the incident [described] by [Ms. NT] to have
occurred at Fort Irwin.” At the direction of the military
judge, an audio tape of the pertinent testimony was played for
the members.
5. Conclusion of the panel’s deliberations and announcement of
findings
The deliberations, which began in the early afternoon, were
concluded in the evening. When the court-martial reconvened
that evening, the military judge asked the president of the
court-martial whether the members had reached a finding and
whether the finding was reflected on the findings worksheets.
After receiving an affirmative response, the military judge then
asked the president to read the findings. The president
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United States v. Thompson, No. 03-0361/AR
announced that the court-martial found Appellant “Not Guilty of
Rape, but Guilty of indecent acts or liberties with a child.”
The findings worksheet set forth the following description of
the offense:
In that Sergeant First Class David R.
Thompson, United States Army, did, at or
near Glattbach, Germany, Fort Irwin,
California, and Fort Knox, Kentucky, on
divers occasions on or between 1 September
1992 and 1 March 1996, commit indecent acts
upon the body of [Ms. B], a female . . .
under 16 years of age, not the wife of the
accused, by touching her private parts with
intent to arouse the sexual desires of the
accused and [Ms. B].
6. Proceedings following announcement of the findings
The military judge informed the members that because they
“entered a finding of guilty to a lesser-included offense,” the
court-martial would “go forward with sentencing.” He also
advised the members that he would first need “to take a short
recess with counsel, outside of your presence, to conduct a
little bit of business.”
At the ensuing Article 39(a) session, the military judge
stated that “the most significant thing is, we do now face the
issue of the statute of limitations on the lesser-included
offense finding.” Both parties agreed that the five-year
limitations period should be based on receipt of charges by the
summary court-martial convening authority on January 3, 2000,
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United States v. Thompson, No. 03-0361/AR
and that the statute of limitations would apply to events prior
to January 3, 1995.
After hearing from both parties on the calculation of the
period, the military judge said:
And so therefore the specification would
have to be corrected to state: On divers
occasions, on or between 3 January 1995, and
1 March 1996; is that correct, Government?
The prosecution agreed. The defense disagreed, and moved for a
finding of not guilty “because we cannot determine if any of the
offenses found occurred within the five-year statute.” In
support of its position, the defense cited United States v.
Glenn, 29 M.J. 696 (A.C.M.R. 1989).
The military judge observed that the matter raised by the
defense was “a close issue,” that Glenn was distinguishable, and
that the relevant test was “whether the record is sufficiently
clear that the acts occurred within the statutory time period.”
He stated that he was “satisfied that the record is sufficiently
clear, that on at least one occasion, that there was in fact a
touching of her private parts by the accused while at Fort Knox,
that would be sufficiently clear to indicate that the offense of
indecent acts with a child had occurred within the statutory
time period, as the evidence in this case suggests.”
The defense disagreed. After noting that the only evidence
involving Fort Knox was an allegation of sexual intercourse and
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United States v. Thompson, No. 03-0361/AR
that the members acquitted Appellant of rape, the defense argued
that the verdict indicated that the members did not believe that
there was sexual intercourse at Fort Knox. The defense comment
led to the following colloquy:
MJ: You are speculating, counsel.
CDC: I think it’s fair comment, Your Honor.
Clearly within the power of the panel, given
the amount of time they took and the
questions they asked, and the distinctions
they drew. Further ---
MJ: But we don’t know. We can’t know.
Their deliberations are secret.
CDC: That is the whole point, Your Honor, of
the argument.
The defense also noted that the majority of the members’
questions dealt with the incident described by Ms. NT, arguing
that if that incident occurred, the evidence showed that it
occurred outside the statutory period “in the 1993-94 time
frame.” The defense urged the judge to dismiss the charge,
contending “that the court is substituting its belief of the
evidence, rather than that of the panel.” The military judge
responded that, in his view, the legal test was whether he could
find evidence to support the finding:
They have made a finding. Is there
evidence which suggests all the elements of
this offense could have been found within
the statutory time period, is that evidence
in the record? If I say, as I do, yes, I
believe it is, I am not trying to justify
15
United States v. Thompson, No. 03-0361/AR
the finding. I am simply trying to
determine whether or not Glenn is a bar to
allowing the conviction to stand. I
understand your argument though, sir.
The military judge formally rejected the defense motion on
the grounds that the record contained sufficient evidence of an
offense not barred by the statute of limitations:
[F]or the purposes of resolving the
defense motion, I am going to conclude that
the Glenn case is not controlling, and that
our record does contain sufficient evidence
to support a finding, within the statutory
time period; [and] that the accused did
commit indecent acts upon the body of [Ms.
B].
Based on that ruling, the military judge announced that he would
amend the findings of the court-martial panel:
[I]n order to clarify the issue as to
whether the statute of limitations applies,
I am going to direct that the finding of the
court be amended such that the date, “1
September 1992” would read, “3 January
1995.”
He further stated that he would give the court-martial panel an
opportunity to evaluate the validity of his amendment of the
panel’s verdict:
I will so direct the court-martial
panel members, if they find that
incompatible, they may very well say that to
us - but for our purposes, that will be the
nature of the offense for which sentencing
evidence is being heard.
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United States v. Thompson, No. 03-0361/AR
The military judge then addressed each party. First, he
directed the prosecution not to refer to any events prior to
January 3, 1995, during sentencing. Next, he said:
And, defense, your point is well taken and
the court is willing to reconsider its
ruling in light of further legal research or
analysis, and it’s my belief if you prevail,
the accused will not be irreparably damaged
by the hearing of one sentencing witness
this evening.
When the members returned for the sentencing hearing, the
military judge informed them that he was modifying the
specification, and stated:
It’s therefore important for you to
recognize that the offense for which you
have convicted the accused is as follows:
[“]In that, Sergeant First Class David
R. Thompson, U.S. Army, did, at or near
Fort Irwin, California, and Fort Knox,
Kentucky, on divers occasions between –
on or between 3 January 1995 and 1
March 1996, commit indecent acts upon
the body of [Ms. B], a female under 16
years of age, not the wife of the
accused, by touching her private parts
with intent to arouse the sexual
desires of the accused and [Ms. B].[“]
If that does violence to your verdict and
your views, I need you to tell me that when
we reconvene, or if you know that now, I
would hear that now as well.
When the military judge began to conduct the sentencing
proceedings, the President of the panel interrupted him and
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United States v. Thompson, No. 03-0361/AR
stated that “[t]here may be a question . . . on the change.”
The military judge then informed the President of the panel --
[L]et me make one thing very clear to
you. In discussing this, what we must not
do, is reveal the vote or opinion of any
particular members. And, so, what I am
really interested in is whether or not you
need to say, well, as a matter of fact,
based on what we were talking about in our
discussions, it would appear that the
changes I’ve made, would not reflect what
you actually believe that you found beyond a
reasonable doubt.
The President of the panel asked the military judge to allow the
members to discuss the amendment to the findings. The military
judge advised the members that such a discussion would be
appropriate, adding that “you are talking among yourselves on
providing an answer to my question. You are not reconsidering.”
After the members had discussed the matter, the President
of the panel informed the military judge that if the amended
specification “includes a portion of the period at Fort Irwin, .
. . that satisfies the board.” Appellant and his family had
resided at Fort Irwin for approximately five months during that
period. The military judge then recessed the court-martial for
the evening after hearing a Government witness on sentencing.
When the court-martial reconvened two days later, defense
counsel proposed a question for the military judge to pose to
the members in response to these events: “Would knowing the
approximate date or probable year of the incident about which
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United States v. Thompson, No. 03-0361/AR
[Ms. NT] spoke of as occurring ‘at the house with no grass’
possibly affect your finding of guilty now that the dates of the
specification have been modified to encompass the time period 3
January 1995 to 1 March 1996?” The Government objected to the
proposed question, and the military judge did not make any
further inquiries of the members or rule on defense counsel’s
proposed question at that time.
The discussion then turned again to the defense motion to
dismiss the finding, and the Government contended that the
defense had waived the statute of limitations. The military
judge rejected the Government’s position, stating “[t]here is no
waiver in this case.”
After advising the parties that he had engaged in further
research, the military judge ruled against the defense motion to
propound a further question to the members, and he also rejected
the defense motion to dismiss the finding. The military judge
offered the following explanation for altering the findings that
had been returned by the members:
Here, when the period in place of the
finding, was in my mind, clarified to avoid
the statute of limitations bar, and I did
that because, number one, I didn’t believe
the accused could properly stand convicted
of an offense, a portion of which was within
the statute of limitations, and I didn’t
believe it was appropriate to allow
sentencing to go forward in consideration of
an element of an offense, that was in my
view barred by the statue of limitations.
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United States v. Thompson, No. 03-0361/AR
I did determine at that time, and I
adhere to my earlier conclusion that the
evidence in the record of trial supports the
conclusion that the panel made concerning
the indecent act, of which [Appellant] has
been convicted. I believe that [Ms. B] had
testified to a period at which such an
indecent acts [sic] occurred at Fort Irwin
and at Fort Knox, Kentucky; that it was
within the statue of limitations period.
The military judge provided the following explanation for
his discussion with the members regarding modification of the
findings:
I believe I acted properly to confirm
that with the court members, in accordance
with R.C.M. 922 [announcement of findings];
that is to say to, in effect, discuss an
ambiguous finding with the court members.
Once they recognized that I had modified the
findings, they clearly said, hey, we think
there is some concern about this, let us
think about it. They were given an
opportunity to think about it. They came
back and were clearly not yet satisfied. I
went further and made sure they understood
that the modification left in a portion of
the time period at Fort Irwin, and at that
point the panel said very clearly, okay. In
this case we understand it. That’s all
right. That is consistent with what we
found. I believe, at that point, the
ambiguity was -- the ambiguity in the
finding was cleared up and that that did not
amount to a polling of the court members.
I did not have any member testify under
M.R.E. 606 [competency of court member as
witness], and I don’t believe the verdict
was impeached under R.C.M. 923 [impeachment
of findings] in any way by the clarification
of that ambiguity, an ambiguity admittedly
interjected into the trial by trial judge.
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United States v. Thompson, No. 03-0361/AR
II. DISCUSSION
When the evidence reasonably raises issues concerning a
lesser-included offense or the statute of limitations, the
military judge is charged with specific affirmative
responsibilities. If the evidence at trial reasonably raises a
lesser-included offense, the military judge has an affirmative
duty to include in the instructions a “description of the
elements of each lesser included offense in issue, unless trial
of a lesser included offense is barred by the statute of
limitations (Article 43) and the accused refuses to waive the
bar.” R.C.M. 920(e)(2). See also R.C.M. 907(b)(2)(B)
discussion; United States v. Davis, 53 M.J. 202, 205 (C.A.A.F.
2000). The military judge has an affirmative obligation to
advise an accused of the right to assert the statute of
limitations, and must determine that any waiver of the statute
of limitations bar is both knowing and voluntary. R.C.M.
907(b)(2)(B); United States v. Moore, 32 M.J. 170, 173 (C.M.A.
1991); United States v. Salter, 20 M.J. 116, 117 (C.M.A. 1985)..
In the present case, the military judge appropriately noted
that evidence at trial reasonably raised two lesser-included
offenses, carnal knowledge and indecent acts. He also provided
appropriate instructions as to the elements of each offense.
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United States v. Thompson, No. 03-0361/AR
Before giving those instructions, however, the military
judge was required to draw the attention of the Appellant to the
fact that a substantial portion of the time period set forth in
the proposed instructions included dates in which prosecution of
the lesser-included offenses was barred by the statute of
limitations. In the present case, the military judge erred by
failing to engage in these discussions with Appellant prior to
instructing the members.
The military judge had a timely opportunity to correct this
error after the court was closed for deliberations. At that
point, when the problem was called to his attention by the trial
counsel, the military judge could have conducted the required
inquiry of Appellant to ensure that Appellant understood the
import of the statute of limitations in this case. If the
military judge had made such an inquiry, and if Appellant had
responded in a manner demonstrating a knowing and voluntary
waiver, no further instructions would have been required. If,
on the other hand, the military judge had determined that
Appellant would not waive the statute of limitations, the
military judge would have been obligated to modify the
instructions as to the lesser included offenses to include only
the period that was not time-barred. See R.C.M. 920(b).
It is possible that Appellant, had he been advised properly
by the military judge, might have decided to waive the statute
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of limitations for tactical reasons. The military judge,
however, did not ascertain whether Appellant wished to do so.
Instead, the military judge engaged in a highly technical
discussion with counsel for the parties as to the legal
implications of the statute of limitations -- a discussion that
was devoid of any attention to the subject of waiver. In that
regard, it is noteworthy that when the trial counsel
subsequently asserted that defense counsel’s actions amounted to
waiver, the military judge expressly rejected the suggestion
that Appellant had waived the statute of limitations.
When the panel announced its findings in open court, those
findings were final and were not subject to reconsideration by
the members. See R.C.M. 922(a), 924(a); United States v.
Walters, 58 M.J. 391, 396 n.5 (C.A.A.F. 2003); see also R.C.M.
922(e) (prohibition on polling of members). To the extent that
a military judge may clarify an ambiguous finding, see R.C.M.
922(b) discussion, any such authority is not applicable in the
present case. The military judge had instructed the members
that they could return a verdict of guilty to the lesser-
included offense of indecent acts with a child. He also had
instructed them that they could find Appellant guilty if they
determined that these acts occurred at any time between
September 1, 1992, and March 1, 1996. They returned a verdict
in which their findings mirrored the military judge’s
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United States v. Thompson, No. 03-0361/AR
instruction both as to the lesser-included offense of indecent
acts and the full period of time from September 1, 1992, to
March 1, 1996. There was no ambiguity. The findings were
clear.
The problem was not that the military judge permitted an
ambiguous verdict. The problem was that, absent waiver, the
military judge was required to provide the members with
instructions that focused their deliberations on a much narrower
period of time -- January 3, 1995, to March 1, 1996 -- the
period not barred by the statute of limitations. The time to
focus the members’ attention on the correct time period was
before they concluded their deliberations -- not after they
concluded their deliberations and returned a finding that
addressed a much longer span of time. The failure to do so was
not relieved by the military judge’s subsequent reference to
evidence in the record that could support the finding. The
issue here is not legal sufficiency of the evidence. See United
States v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987)(citing the
legal sufficiency test from Jackson v. Virginia, 443 U.S. 307
(1979)). It is the failure of the military judge to focus the
panel’s deliberations on the narrower time period permitted by
the statute of limitations.
In summary, the military judge’s instructions, although
erroneous, were not ambiguous. The panel’s findings, which
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United States v. Thompson, No. 03-0361/AR
reflected those instructions, likewise were not ambiguous. In
those circumstances, the military judge was not authorized to
modify the findings, irrespective of any subsequent discussions
with the members. The failure to conduct a statute of
limitations waiver inquiry with Appellant, the erroneous
inclusion of the time-barred period in the instructions to the
members, and the post-announcement modification of the findings
constituted a series of errors materially prejudicial to the
substantial rights of Appellant. See Article 59(a), UCMJ, 10
U.S.C. § 859(a) (2000).
III. DECISION
The decision of the United States Army Court of Criminal
Appeals is reversed. The findings and sentence are set aside.
The record of trial is returned to the Judge Advocate General of
the Army. A rehearing may be ordered.
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United States v. Thompson, No. 03-0361/AR
CRAWFORD, Chief Judge (dissenting):
The majority finds prejudicial error in the military
judge’s “failure to conduct a statute of limitations waiver
inquiry with Appellant, the erroneous inclusion of the time-
barred period in the instructions to the members, and the post-
announcement modification of the findings[.]” ___ M.J. (25) I
respectfully disagree. In my view, because the constitutional
policy behind the statute of limitations was otherwise served in
this case, no portion of the time period set forth in the
proposed instructions included dates in which prosecution of the
lesser-included offenses was barred by the statute of
limitations. Furthermore, even assuming error, Appellant
suffered no prejudice to his substantial rights, as there is
overwhelming evidence that the indecent acts described in the
findings occurred within the modified time period. Accordingly,
I would affirm Appellant’s conviction and sentence.
A. The Statute of Limitations did not Bar Prosecution for any
Applicable Lesser-Included Offenses in this Case
The Fifth Amendment ensures that “[n]o person shall be held
to answer for a . . . crime . . . without due process of law.”
The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
informed of the nature and cause of the accusation.” Statutes
United States v. Thompson, No. 03-0361/AR
of limitation exist precisely to protect these constitutional
provisions.
The purpose of a statute of limitations is to limit
exposure to criminal prosecution to a certain fixed
period of time following the occurrence of those acts
the legislature has decided to punish by criminal
sanctions. Such a limitation is designed to protect
individuals from having to defend themselves against
charges when the basic facts may have become obscured
by the passage of time and to minimize the danger of
official punishment because of acts in the far-distant
past. Such a time limit may also have the salutary
effect of encouraging law enforcement officials to
promptly investigate suspected criminal activity.
Toussie v. United States, 397 U.S. 112, 114-15 (1970)(emphasis
added).
Invoking these same rights, military justice requires a
charge and its specifications “to be sufficiently specific to
inform the accused of the conduct charged, to enable the accused
to prepare a defense, and to protect the accused against double
jeopardy.” United States v. Weymouth, 43 M.J. 329, 333
(C.A.A.F. 1995). See also Rule for Courts-Martial 307(c)(3)
[hereinafter R.C.M.] (“A specification is a plain, concise, and
definite statement of the essential facts constituting the
offense charged.”). Because of this required specificity,
Congress has dictated that an accused may be found guilty not
only of the charged offense, but also “of an offense necessarily
included in the offense charged[.]” Article 79, Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. § 879 (2000).
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United States v. Thompson, No. 03-0361/AR
See also R.C.M. 307(c)(3) (“A specification is sufficient if it
alleges every element of the charged offense expressly or by
necessary implication.”). “A lesser offense is included in a
charged offense when the specification contains allegations
which either expressly or by fair implication put the accused on
notice to be prepared to defend against it in addition to the
offense specifically charged.” Manual for Courts-Martial,
United States (2002 ed.), Part IV, para. 3.b.(1).
Thus, the precise reason why a court-martial may convict an
accused of an uncharged lesser-included offense is because
inherent in the principal specification is notice of the lesser-
included offense. This notice implicitly provides the accused
with the basic facts and information needed to defend against
the lesser-included offense. In so doing, the constitutional
rights of due process and information of the nature and cause of
an accusation are guaranteed as to a necessarily-included
lesser-included offense.
In the case at bar, Appellant’s conviction of indecent acts
with a minor arose from the same basic facts that led to his
initial rape charge. In the same pattern of sustained sexual
abuse based on which the Government charged Appellant with rape,
the members found sufficient evidence of indecent acts with a
minor. In other words, the arsenal of basic facts Appellant
addressed to defend his rape charge was the same arsenal of
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United States v. Thompson, No. 03-0361/AR
basic facts Appellant would have needed to defend a charge of
indecent acts with a minor. In facing the rape charge for a
specific victim on specific dates at specific locations,
Appellant was adequately prepared to defend a charge of indecent
acts with the same victim on the same dates in the same
locations. Because due process, and information of the nature
and cause of the accusation, remained secure as to the lesser-
included offense, the statute of limitations did not bar
prosecution for a lesser-included offense committed outside the
modified time period.
In this vein, several state courts have held that the
running of the statute of limitations on the underlying felony
is irrelevant to a prosecution for felony murder. See State v.
Dennison, 801 P.2d 193, 202 (Wash. 1990)(finding that complying
with the underlying felony’s statute of limitations is not a
jurisdictional prerequisite to prosecuting someone for felony
murder); People v. Sellers, 250 Cal. Rptr. 345, 351 n.15 (Cal.
Ct. App. 1988)(noting that a felony murder charge could be based
on attempted rape even though the statute of limitations had run
on attempted rape); Jackson v. State, 513 So. 2d 1093, 1094-95
(Fla. Dist. Ct. App. 1987)(concluding that the predicate or
threshold crime is statutorily distinct from the crime of felony
murder); People v. Lilliock, 71 Cal. Rptr. 434, 442 (Cal. Ct.
App. 1968)(holding that instruction on felony murder may be
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United States v. Thompson, No. 03-0361/AR
given in a prosecution for murder even though a prosecution for
the underlying felony would be barred by the statute of
limitations); People v. Harvin, 259 N.Y.S.2d 883, 886 (N.Y. Sup.
Ct. 1965)(holding that a charge of felony murder may not be
separated into its component parts so that if the statute of
limitations were a bar to the prosecution of one of the elements
of the crime, the major crime, the felony murder charge, would
also fall). The relationship of felony murder to felony is
analogous to the relationship between a principal offense and
its lesser-included offense. Indeed, commission of felony
murder encompasses as a lesser offense commission of the
underlying felony. This analogy leads me to conclude that the
running of the statute of limitations for indecent acts does not
preclude prosecution for rape, or a subsequent conviction on the
lesser-included offense of indecent acts.
B. Appellant Suffered no Prejudice
“A finding or sentence of court-martial may not be held
incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused.”
Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000). Even assuming
the military judge erred, Appellant clearly suffered no
prejudice to his substantial rights. Indeed, there was
overwhelming evidence that the indecent acts described in the
findings occurred within the modified time period, and therefore
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United States v. Thompson, No. 03-0361/AR
not within the period allegedly barred by the statute of
limitations.
First, Ms. B’s testimony revealed a sustained pattern of
horrendous sexual abuse, as follows:
• Glattbach, Germany (pre-1985): Appellant touched Ms. B
sexually when he tucked her in at night. Appellant
required Ms. B to masturbate him under a blanket.
Appellant forced Ms. B to engage in anal intercourse.
• Fort Polk, Louisiana (1986 - December 1989): Anal
intercourse increased to three times per week. Appellant
induced Ms. B, with the promise of gifts and candy, to
take his penis into her mouth.
• Grandmother’s House, Germany (January 1989 - February
1992): Fondling and anal intercourse continued with same
frequency. Appellant attempted vaginal penetration.
• Fort Irwin, California (March 1992 - May 1995): Appellant
consummated act of vaginal intercourse, which replaced
regular anal intercourse. Ms. NT walked in on Appellant
and Ms. B, and witnessed Ms. B kneeling over the bed with
Appellant, pants down, behind Ms. B.
• Fort Knox, Kentucky (June 1995 – 1996): Appellant
continued to require vaginal intercourse. Appellant was
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United States v. Thompson, No. 03-0361/AR
verbally abusive. Ms. B revealed abuse to her boyfriend
and mother. Abuse of Ms. B stopped.
The pattern of abuse about which Ms. B testified
overwhelmingly supports a finding of indecent acts during the
modified time period, which encompassed January 3, 1995, through
March 1, 1996. Indeed, Ms. B testified that Appellant sexually
abused her during this specific time period, consistent with the
overall pattern of abuse.
Moreover, one of the members indicated that the panel based
its findings in large part on acts that occurred at Fort Irwin,
California, where Appellant was stationed during part of the
modified period. These acts were described not only by Ms. B
herself, but also by her sister, Ms. NT, who testified in a
pretrial deposition that she observed her father sexually
abusing Ms. B at Fort Irwin. Ms. NT’s subsequent recantation of
this testimony at trial is questionable. See, e.g., United
States v. Suarez, 35 M.J. 374, 376 (C.M.A. 1992)(observing that
a child may render inconsistent statements as to abuse, recant
allegations of abuse, and fail to report or delay reporting
abuse). Thus, in addition to the general pattern of abuse about
which Ms. B testified, there was additional evidence that
Appellant committed indecent acts with Ms. B specifically at
Fort Irwin, where Appellant resided during part of the modified
period.
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United States v. Thompson, No. 03-0361/AR
Finally, after the members presented their findings, the
military judge clarified that the members understood the dates
during which Appellant’s indecent acts must have occurred, in
order to convict him for the offense. The military judge
clarified that the members understood where Appellant was
stationed during the applicable dates. The military judge
clarified that the members had sufficient time to digest the
change in the specification’s dates, and indeed the members took
a recess to discuss the change and make certain the findings
were still valid in light of it. In the absence of evidence to
the contrary, this Court will presume the members followed the
judge’s instructions. United States v. Orsburn, 31 M.J. 182,
188 (C.M.A. 1990). These actions and instructions ensured that
the findings comported with the modified specification, and
therefore that Appellant was convicted of offenses not barred by
the statute of limitations.
For these reasons, I respectfully dissent from the lead
opinion.
8