`
`
`
`
`
`No. 19-184
`
`IN THE
`Supreme Court of the United States
`________
`
`UNITED STATES, Petitioner,
` v.
`RICHARD D. COLLINS, Respondent.
`________
`
`UNITED STATES, Petitioner,
`v.
`HUMPHREY DANIELS III, Respondent.
`________
`
`On Petition for a Writ of Certiorari to
`the United States Court of Appeals
`for the Armed Forces
`________
`
`BRIEF FOR RESPONDENT
`HUMPHREY DANIELS III IN OPPOSITION
`________
`
`M. DEDRA CAMPBELL, CAPT., USAF
` Air Force Legal Operations Agency
` 1500 West Perimeter Road
` Suite 1100
` Joint Base Andrews, MD 20762
`
`DAVID P. SHELDON
`
`Counsel of Record
` TAMI L. MITCHELL
` Law Offices of
` David P. Sheldon PLLC
` 100 M St. SE, Suite 600
` Washington, DC 20003
` (202) 552-0018
`
` davidsheldon@militarydefense.com
`
`
`October 9, 2019
`
`
`
`
`
`Counsel for Respondent Humphrey Daniells III
`
`

`

`i
`QUESTIONS PRESENTED
`1. Whether the Court of Appeals for the Armed
`Forces erred in United States v. Mangahas , 77 M.J.
`220, pet. recon. denied , 77 M.J. 323 (C.A.A.F. 2018),
`in ruling that Art. 43(a), Uniform Code of Military
`Justice (UCMJ), which until 2006, provided that
`crimes “punishable by death” may be tried and
`punished at any time without limitation, did not apply
`to the crime of rape.
`jurisdiction to
`2. Whether this Court has
`review the question presented in the Petition, given
`that Question 1 above was, by the Government’s
`own suggestion, not addressed or decided by the
`Court of Appeals
`for the Armed Forces
`in
`Respondent Daniels’s case.
`
`
`
`
`
`

`

`ii
`RELATED PROCEEDINGS
`Respondent is unaware of any related proceedings
`other than those identified in the Petition. See Pet. II.
`
`
`
`
`
`

`

`iii
`TABLE OF CONTENTS
`QUESTIONS PRESENTED ................................................ i
`RELATED PROCEEDINGS ............................................... ii
`TABLE OF AUTHORITIES ............................................... iv
`INTRODUCTION ............................................................. 1
`DECISIONS BELOW ........................................................ 2
`JURISDICTION ............................................................... 2
`CONSTITUTIONAL
`STATUTORY
`PROVISIONS
`AND
` INVOLVED .......................................................... 2
`STATEMENT OF FACTS .................................................. 3
`REASONS FOR DENYING PETITION ................................ 6
`CONCLUSION .............................................................. 22
`
`
`
`
`
`
`
`

`

`iv
`TABLE OF AUTHORITIES
`
`
`CASES
`
`Ashwander v. TVA,
` 297 U.S. 288 (1936) ............................................... 21
`Brady v. Maryland,
` 373 U.S. 83 (1963) .................................................. 5
`Burton v. United States,
` 196 U.S. 283 (1905) .............................................. 21
`Cheney v. United States Dist. Court,
` 542 U.S. 367 (2004) .............................................. 11
`Coker v. Georgia,
` 433 U.S. 584 (1977) ............................... 13-14, 16-17
`Furman v. Georgia,
` 408 U.S. 238 (1972) .............................................. 13
`Gregg v. Georgia,
` 428 U.S. 153 (1976) ........................................ 13-14
`Hill v. Rivera,
` No. 2:17CV00003-JLH, 2018 WL 6182637 (E.D.
` Ark. Nov. 27, 2018) (unpub. op.) ........................... 8
`Hilton v. Nixon,
` No. 18-3139-JWL, 2018 WL 5295894 (D. Kan. Oct.
` 25, 2018) (unpub. op.) ............................................ 8
`In re Best,
` __ M.J. __, 2019 WL 2481956 (N-M. Ct. Crim.
` App. Jun. 14, 2019) ................................................ 8
`Kennedy v. Louisiana,
` 554 U.S. 955 (2008) .............................................. 16
`San Francisco v. Sheehan,
` 135 S. Ct. 1765 (2015) .......................................... 20
`Stogner v. California,
` 539 U.S. 607 (2003) ........................................ 10, 20
`Teague v. Lane,
` 489 U.S. 288 (1989) ................................................ 8
`Toussie v. United States,
`
`

`

`v
` 397 U.S. 112 (1970) .............................................. 10
`United States v. Ealy,
` 363 F.3d 292 (4th Cir. 2002) ............................. 13-14
`United States v. Barry,
` 78 M.J. 70 (C.A.A.F. 2018) ................................... 17
`United States v. Briggs,
` 78 M.J. 289 (C.A.A.F. 2019) .................................. 1
`United States v. Ewell,
` 383 U.S. 116 (1966) .............................................. 10
`United States v. Kelly,
` 77 M.J. 404 (C.A.A.F. 2018) ................................ 17
`United States v. Kick,
` 7 M.J. 82 (C.M.A. 1979) ....................................... 17
`United States v. Mangahas,
` 77 M.J. 220 (C.A.A.F. 2018) ......................... passim
`United States v. Mangahas,
` Misc. Dkt. No. 2016-10, 2017 CCA Lexis 236 (A.F.
` Ct. Crim. App. Apr. 4, 2017) (unpub. op.) ............. 9
`United States v. Marion,
` 404 U.S. 307 (1971) ............................................... 10
`United States v. Payne,
` 591 F.3d 46 (2d Cir. 2010) ............................... 12-14
`United States v. Thompson,
` No. 20140974, 2018 WL 1092097 (A. Ct. Crim.
` App., Feb. 26, 2018) (unpub. op.) .......................... 8
`
`STATUTES AND COURT RULES
`
`10 U.S.C.
` § 843, Art. 43, UCMJ .................................... passim
` § 855, Art. 55, UCMJ .................................. 2, 16-17
` § 866, Art. 66, UCMJ ........................................... 17
` § 867, Art. 67, UCMJ ..................................... 11, 18
` § 920, Art. 120, UCMJ .................................. passim
`18 U.S.C. § 3281 ................................................... 11-14
`18 U.S.C. § 3282 ........................................................ 13
`
`

`

`vi
`28 U.S.C. § 1259 .................................................... 2, 18
`MIL. R. EVID. 609(b) ................................................. 5
`S. Ct. R. 10 .................................................................. 6
`S. Ct. R. 13.1 ............................................................... 1
`
`OTHER AUTHORITIES
`
`Brief for the Respondent in Opposition,
` United States v. Briggs, No. 19-108 .... 8, 16, 18, 20
`Brief for the Respondent in Opposition,
` United States v. Collins, No. 19-184 ......... 8, 16, 18
`Brief for the United States in Opposition,
` Larrabee v. United States, 139 S. Ct. 1164
` (2019) .............................................................. 15, 18
`Brief for the United States in Opposition,
` Sullivan v. United States, 137 S. Ct. 31
` (2016) .................................................................... 15
`Certificate for Review,
` United States v. Daniels, Crim. App. Dkt. 39407
` (A.F. Ct. Crim. App. Jun. 18, 2019, filed June 19,
` 2019) ..................................................................... 18
`LexisNexis Advance Public Records Smartlinx®
`Comprehensive
` Person Report ...................................................... 5
`Motion for Summary Disposition,
` United States v. Daniels, Crim. App. Dkt. 39407
` (A.F. Ct. Crim. App. Jun. 18, 2019, filed June 19,
` 2019) ..................................................................... 19
`Petition for a Writ of Certiorari,
` United States v. Briggs, No. 19-108 .............. passim
`Petition for a Writ of Certiorari,
` United States v. Collins, et. al.,
` No. 19-184 ..................................................... passim
`Pub. L. No. 109-163, § 553, 119 Stat. 3136,
`3264 ............................................................................. 3
`S. Rep. No. 98-53 (1983) ........................................... 15
`
`

`

`1
`INTRODUCTION
`
`This case presents no issue worthy of this Court’s
`discretionary review. The Government’s primary
`argument is that the Court of Appeals for the Armed
`Forces (CAAF) “misinterpreted” the applicable statute
`of limitations—not in this case, but in a case CAAF
`decided in 2018. United States v. Mangahas, 77 M.J.
`220, pet. recon. denied, 77 M.J. 323 (C.A.A.F. 2018).
`The Government, however, did not challenge
`Mangahas before this Court within the jurisdictional
`time limits under Supreme Court Rule 13.1. And in
`this case, the Government did not even ask CAAF to
`reconsider Mangahas. Instead, it asked CAAF to
`summarily affirm Respondent’s case on the basis of
`Mangahas, in a naked attempt to then use this case as
`a vehicle to get around its failure to seek certiorari in
`that case.
` Therefore, as a threshold matter,
`Respondent posits that this Court lacks jurisdiction to
`consider the question the Government poses in the
`Petition.
`Even if the Court does have jurisdiction, there are
`multiple compelling reasons why certiorari should be
`denied. The Government exaggerates the effect
`Mangahas and United States v. Briggs, 78 M.J. 289
`(C.A.A.F. 2019) would have on the military’s efforts to
`deal with sexual abuse within its ranks; manufactures
`nonexistent tension between CAAF’s rulings and
`those of the civilian courts; and disregards the
`deference due CAAF to interpret the Uniform Code of
`Military Justice (UCMJ). CAAF’s interpretation of
`the UCMJ’s statute of limitations was entirely
`reasonable and correct, given the plain language of
`Article 43, UCMJ and
`this Court’s binding
`jurisprudence on the inapplicability of the death
`
`

`

`2
`penalty to crimes not resulting in death. The Petition
`should therefore be denied.
`
`
`DECISIONS BELOW
`
`
`
`CAAF’s decision in Respondent’s case is reported
`at 2019 WL 3026956 (C.A.A.F. Jul. 22, 2019), and is
`reprinted in the Petition Appendix C at 19a–20a. The
`Air Force Court of Criminal Appeals’ decision in
`Respondent’s case is not published, but is available at
`2019 WL 2560041 (A.F. Ct. Crim. App. Jun. 18, 2019),
`and reprinted in the Petition Appendix D at 21a–41a.
`
`
`JURISDICTION
`
`
`
`The government invokes this Court’s jurisdiction
`under 28 U.S.C. § 1259(2). As noted in Section III
`below, Respondent challenges Petitioner’s invocation
`of this Court’s jurisdiction over the Petition.
`
`
`CONSTITUTIONAL AND STATUTORY PROVISIONS
`INVOLVED
`
`
`
`In addition to the provisions identified in the
`Petition, Pet. App. 42a–45a, this case involves Article
`55, UCMJ, which provides in relevant part that
`“[p]unishment by flogging, or by branding, marking,
`or tattooing on the body, or any other cruel or unusual
`punishment, may not be adjudged by any court-
`martial or inflicted upon any person subject to this
`chapter.” 10 U.S.C. § 855. Also of relevance is the full
`text of the 2006 amendment to Article 43, UCMJ, 10
`U.S.C. § 843.1
`
`1 The 2006 amendment was enacted as section 553 of the
`National Defense Authorization Act for Fiscal Year 2006, Pub. L.
`
`

`

`3
`STATEMENT OF FACTS
`The only witness against Respondent at trial on
`the rape charge was TS,2 who at the time of the
`alleged offense was a 29-year-old civilian college
`student in Minot, North Dakota, with no connection
`to the military. Although TS testified she did not
`consent to sexual intercourse with Respondent, she
`admitted that she did: consent to him coming to her
`house at a late hour, R. 844, 861; give him
`directions to her house, R. 860; flirt with him after
`he arrived, R. 846, 867; ask him whether he, an
`African-American man, had ever dated a white
`woman before, R. 866; tell him she was “on the pill,”
`R. 870; tell him she was looking for a father for her
`son, R. 867; and put her head on his lap as a “hint
`that I was tired.” R. 894-95. She also admitted she
`told Respondent, “You’re welcome to come up and
`sleep in my bed,” R. 868, where they “spooned”
`together. R. 869. She acknowledged she had an
`opportunity to leave her bedroom when Respondent
`went to the bathroom to undress and put on a
`condom. R. 892.
`TS described Respondent as being on top of her
`“holding her down” at the time of the penetration,
`R. 851, but she acknowledged she never told
`investigators in 1998 that Respondent did anything
`to physically restrain her, R. 874-75. TS admitted
`Respondent did not threaten her or her son. R. 874.
`When asked directly on cross-examination whether
`
`No. 109-163, § 553, 119 Stat. 3136, 3264. That statute entered
`into force on January 6, 2006.
`2 Although TS identifies herself by her full name in her amicus
`brief in support of the Petition, Respondent will continue
`referring to her by her initials.
`
`

`

`4
`he did anything to overpower her, TS said “I can’t
`recall.”3 R. 874. She described herself as a
`“pleaser,” R. 861, and a “nurturer,” R. 878, and
`admitted it was easier for her to say “yes” than “no.”
`R. 861. She acknowledged that she did not want to
`report the incident to police after it happened, R.
`854, that it was a friend who brought the
`authorities into the picture, R. 855, and that she
`wanted the authorities to drop the charges against
`Respondent, which they did at her request, because
`“I wanted things to go away.” R. 896.
`Throughout her testimony, TS could not recall
`what she told investigators in 1998, and in fact was
`confronted with multiple inconsistencies between
`what she said at trial versus what she told
`investigators in 1998. See R. at 863-70, 872-75.
`Her inability to recall her prior statements was
`understandable given the time that had passed. In
`fact, repeatedly she said “Again, 19 years ago. I’m
`trying to remember the best I can,” R. 863, or some
`variation thereof. E.g., R. 854, 859, 892, 868, 870,
`872, 879.
`Seventeen years after TS had adamantly
`declined to press a rape charge against Respondent,
`she was contacted by a Fairfax County, Virginia
`police detective who was investigating a complaint
`against Respondent
`in connection with an
`unrelated domestic dispute. When pressed on
`whether she was now willing to pursue a rape
`charge against Respondent, who had by this time
`risen
`in rank
`from a newly-minted Second
`
`3 This testimony was important because in 1998, Art. 120,
`UCMJ, defined rape as “sexual intercourse by force and without
`consent” (emphasis added).
`
`

`

`5
`Lieutenant to a Lieutenant Colonel, TS reversed
`course and agreed to do so. This court-martial
`proceeding ensued.
`The passage of time not only affected TS’s
`memory but also impacted the defense’s ability to
`investigate. Respondent’s civilian and military
`defense counsel attempted to find the “friend” who
`reported TS’s allegation of rape to the military, as
`well as the local police detectives and the Office of
`Special Investigations (OSI) agent who interviewed
`TS and Respondent, and who potentially could offer
`the inconsistent statements TS made in 1998 and
`refute her belated claim that the “real” reason she
`dropped the case was because they were “hostile” to
`her.4 None of these people could be located. R. 27,
`30. One witness was dead. R. 27. The defense
`moved to compel
`investigative assistance
`in
`tracking down witnesses who were still alive. R. 27-
`31; App. Ex. V. That motion was denied. The
`defense also moved to dismiss the rape charge for
`
`4 Counsel discovered during the appeal to the Air Force Court of
`Criminal Appeals that the Government failed to disclose to the
`defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963),
`evidence that TS was convicted in Minot, ND on February 8, 1991
`of a misdemeanor that bore on her credibility. Criminal Filings
`for TS, LexisNexis Advance Public Records Smartlinx®
`Comprehensive Person Report (last accessed Oct. 1, 2019).
`Pet. App. D, at 23a. Had this information been available at
`the time of Respondent’s 2017 trial, it still might not have
`been admissible to impeach her because Military Rule of
`Evidence 609(b) prohibits the entry of a criminal conviction to
`impeach if the conviction is more than 10 years old, absent
`exceptional circumstances. Had the trial occurred before
`February 8, 2001, however, this evidence would have been
`admissible. This is raised simply to demonstrate another way
`the passage of time damaged Respondent’s ability to defend
`himself against a stale charge.
`
`

`

`6
`violating Respondent’s Fifth Amendment due
`process rights and the statute of limitations. R. 32-
`57; App. Ex. VIII. In the hearing on that motion,
`Respondent called an expert on memory loss, Dr.
`Reneau Kennedy, who testified that after such a
`long passage of time, “the event itself is not
`necessarily encapsulated
`in the way that
`it
`originally occurred.” R. 56. Dr. Kennedy also
`testified it was possible that not only had TS’s
`memory degraded, her memory may also be
`contaminated. Id. Nevertheless, the motion to
`dismiss was also denied.
`REASONS FOR DENYING THE PETITION
`I. There Are No “Compelling Reasons” for the Court
`to Review This Case.
`Supreme Court Rule 10 provides that petitions for
`certiorari will be granted only for “compelling
`reasons.” Of the factors that Rule 10 says the Court
`will consider in making that determination, the
`Petition attempts to implicate at most only two: (a) the
`case presents an important federal question that has
`not been, but should be, settled by this Court (see Rule
`10(c)), and (b) the case is in conflict with the decisions
`of other federal courts of appeals (see Rule 10(a)).5 For
`the reasons discussed below, neither is present in this
`case.
`A. The Government Overstates the Importance of
`These Cases to Its Efforts to Curb Sexual
`Assault in the Military.
`The Government rightly points out that sexual
`
`5 Notably, the Government does not contend CAAF’s decision in
`this case conflicts with any decisions of this Court (see Rule
`10(c)).
`
`

`

`7
`assault is an especially important and vexing problem
`in the armed forces, Pet. at 4-5, and concludes that
`investigating and prosecuting such cases is a “top
`priority” for the armed forces. Id. at 5.6 Respondent
`fully agrees sexual abuse in the military is an
`important problem that requires an aggressive
`response. But the issue here is not whether the
`problem is important in general, but how important
`these few cases are, if at all, to the military’s efforts to
`address the problem.
` Respondent respectfully
`submits that the Court’s denial of certiorari in this
`case would have little or no adverse effect on the
`government’s commendable efforts to crack down on
`sexual abuse in the military.
`The Government concedes that the universe of
`cases that would be affected by CAAF’s decision in
`Mangahas “is not especially high.” Pet. at 17. In fact,
`in the Petition for Certiorari the Government filed on
`July 22, 2019 in United States v. Briggs, No. 19-108
`(Briggs Pet.), it acknowledges that the decision in
`Mangahas affects only a “closed set of crimes
`committed before 2006,” id. at 23, and that the
`number of still-pending cases in which the issue is
`presented is “very small.” Id. at 26. Indeed, it
`identifies only three such cases—the three pending
`here on certiorari. Id. at 23. It also identifies a fourth
`case in which the Army Court of Criminal Appeals
`applied Mangahas to overturn a rape conviction, see
`
`6 The reports from which the Government quotes to make the
`case that rape in the military is particularly serious because it
`adversely affects “morale,” “good order” and “unit cohesion” all
`focus on rapes in which both perpetrator and victim are service
`personnel. See Pet. at 4-5. But not all military rape cases involve
`victims who are themselves in the military, as this case
`demonstrates.
`
`

`

`8
`id. (citing United States v. Thompson, No. 20140974,
`2018 WL 1092097 (A. Ct. Crim. App., Feb. 26, 2018)
`(unpub. op.)). Like in Mangahas, however, the
`Government allowed Thompson to become final, not
`even seeking review by CAAF. Thus, even if this
`Court were to grant certiorari in these cases and
`reverse CAAF, its ruling would apply to only three of
`the five recent cases in which the pre-2006 statute of
`limitations for rape is, or has been, at issue, and in the
`process, would leave this small handful of cases with
`inconsistent results.7 Additionally, even when final
`rape convictions are being collaterally attacked
`through writs of habeas corpus, the federal and
`military
`courts have not applied Mangahas
`retroactively, as Mangahas does not meet the criteria
`of Teague v. Lane, 489 U.S. 288 (1989) for retroactive
`application. See Hilton v. Nixon, No. 18-3139-JWL,
`2018 WL 5295894 (D. Kan. Oct. 25, 2018) (unpub. op.);
`Hill v. Rivera, No. 2:17CV00003-JLH, 2018 WL
`6182637 (E.D. Ark. Nov. 27, 2018) (unpub. op.); In re
`Best, __ M.J. __, 2019 WL 2481956 (N-M. Ct. Crim.
`App. Jun. 14, 2019).
`
`7 Indeed, as Respondents Briggs and Collins point out in their
`Briefs in Opposition, when the Judge Advocate General certified
`those cases to CAAF, he did not certify the question decided in
`Mangahas, but only the questions of whether the 2006
`amendments to Art. 43, UCMJ apply retroactively, and whether
`those Respondents could raise the statute of limitations defense
`for the first time on appeal. Additionally, those were the only
`questions decided by CAAF in those cases. See Briggs Brief in
`Opposition, at 8-9; Brief in Opposition, United States v. Collins,
`No. 19-184 (filed Sept. 9, 2919) (Collins Brief). If, as those
`Respondents argue, the Mangahas ruling was not before CAAF,
`and therefore not before this Court in their cases, then there are
`at most only three cases—Thompson, Mangahas itself, and this
`one—to which the Mangahas ruling has been applied, and only
`this one remains pending.
`
`

`

`9
`To be sure, CAAF’s ruling in Mangahas affects not
`only pending cases but cases that might otherwise be
`brought. The Government says the military continues
`to receive reports of rapes occurring before 2006,
`Briggs Pet. at 16, and contends that as a result of
`Mangahas, the military has dismissed or declined to
`prosecute “at least ten” cases it otherwise would have
`pursued. See id. at 23. The Government provides no
`information about these cases by which its assertion
`can be evaluated, but it seems likely that, because of
`the staleness of the now decades-old evidence, a
`number of them would not have resulted in a
`conviction—or even a trial, if the military judge were
`to find the accused was so prejudiced by the
`government’s delay in bringing the case that his Due
`Process rights were violated, as originally occurred in
`Mangahas. Misc. Dkt. No. 2016-10, 2017 CCA Lexis
`236 (A.F. Ct. Crim. App. Apr. 4, 2017) (unpub. op.).
`The interests of the military in curbing sexual abuse
`in its ranks has likely been better served because the
`investigators and prosecutors assigned to the few
`ancient cases dropped because of Mangahas have been
`able to turn their attention to more recent cases in
`which the evidence is fresher and the likelihood of
`conviction is greater.8
`Finally, in evaluating the Government’s claimed
`interests, the Court also should consider the interests
`served by statutes of limitations. There are sound
`reasons why the courts have a long history of favoring
`
`8 As discussed more fully in Section IV infra, one option for the
`Court is to grant certiorari only in Briggs to review the
`retroactivity issue. If the Court were to take that route, then
`those cases in which the crime occurred between January 6, 2001
`and January 5, 2006, likely a large percentage of the “at least
`ten” in total, still would be prosecutable.
`
`

`

`10
`repose. “[T]he . . . statute of limitations . . . is . . . the
`primary guarantee against bringing overly stale
`criminal charges.” United States v. Marion, 404 U.S.
`307, 322 (1971) (quoting United States v. Ewell, 383
`U.S. 116, 122 (1966)). A statute of limitations “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.” Marion, 404 U.S. at 323
`(quoting Toussie v. United States, 397 U.S. 112, 114-
`15 (1970)); see also Marion, 404 U.S. at 322 n.14
`(“criminal statutes of limitations are to be liberally
`construed in favor of repose”). To paraphrase Stogner
`v. California, 539 U.S. 607 (2003), in which this Court
`held the Ex Post Facto clause prohibits the retroactive
`application of a statute eliminating a limitations
`period for child abuse to cases in which the prior
`statute of limitations had expired:
`Memories fade, and witnesses can die or
`disappear. Such problems can plague
`[rape] cases, where recollection after so
`many years may be uncertain, and
`“recovered” memories faulty, but may
`nonetheless lead to prosecutions that
`destroy [service members].
`Id. at 631.
`This is a classic example of such a case, where the
`evidence against Respondent was based solely on a
`faulty, conflicting memory of nuanced actions that
`occurred, and words that were uttered, almost 20
`years earlier; where key witnesses disappeared or
`died, and relevant evidence became inadmissible.
`Assuring that service members who rape are
`
`

`

`11
`convicted and punished is important. But that
`objective must be balanced against the need to assure
`that service members are not wrongly convicted and
`punished, and their careers wrongly ruined, on the
`basis of stale and unreliable evidence. After all, “a
`‘primary constitutional duty of the Judicial Branch
`[is] to do justice in criminal prosecutions.’” Cheney v.
`United States Dist. Court, 542 U.S. 367, 384 (2004)
`(quotation omitted). “Doing justice” in sexual assault
`cases requires doing justice for an accused just as
`much as for an alleged victim.
`B. There Is Neither “Conflict” Nor “Inconsistency”
`with the Decisions of Other Courts of Appeals.
`Tellingly, the Government avoids using the word
`“conflict,” but argues that there is “inconsistency”
`between the CAAF’s interpretation of the phrase
`“punishable by death” in Art. 43, UCMJ and the
`interpretation by civilian courts of appeals of identical
`language in 18 U.S.C. § 3281, the statute of
`limitations for non-military prosecutions. Briggs Pet.
`at 24.
` In fact, there is neither conflict nor
`inconsistency.
`There is no conflict because the CAAF and the
`other federal courts of appeals operate in entirely
`separate spheres. The CAAF’s jurisdiction is limited
`to cases arising under the UCMJ. Art. 67, UCMJ, 10
`U.S.C. § 867. But, over those cases, its jurisdiction is
`exclusive. Thus, there is no possibility a civilian court
`of appeals will be called upon to interpret and apply
`the UCMJ’s statute of limitations to a case before it,
`just as there is no possibility that the CAAF will ever
`have before it a case in which it has to interpret and
`apply 18 U.S.C. § 3281. To be sure, cases may arise
`on one side of this divide in which the statute of
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`12
`limitations on the other side has some bearing, but
`surely the CAAF will defer to how the civilian courts
`interpret § 3281, just as the civilian courts will defer
`to the CAAF for interpretation of Art. 43, UCMJ.
`Nor is there any “inconsistency.” The Government
`cites six civilian courts of appeals decisions with which
`it claims Mangahas is inconsistent. See Briggs Pet. at
`23-24. But, as CAAF noted, all of those cases involved
`murder, not rape, and none involved the issue decided
`in Mangahas—whether a statute removing any period
`of limitations for crimes “punishable by death” applies
`to a crime that constitutionally could never be
`punished by death. Mangahas, 77 M.J. at 224.
`The manner in which the Government employs
`United States v. Payne, 591 F.3d 46 (2d Cir.), cert.
`denied, 562 U.S. 950 (2010)—the first in its list of
`supposedly “inconsistent” civilian courts of appeals
`decisions—illustrates the distinction well.
` The
`Government describes the holding in Payne, and its
`supposed inconsistency with the CAAF’s holdings in
`Mangahas, with this sentence: “[C]ivilian courts of
`appeals have agreed for 50 years that an offense is
`‘punishable by death’ under Section 3281 if ‘the
`statute authorizes the death penalty as a punishment,
`regardless of whether the death penalty’ can be
`constitutionally imposed.” Briggs Pet. at 24 (citing,
`and attributing the second internal quote to Payne,
`591 F.3d at 59). The second internal quote is indeed
`directly from Payne, but the crucial last four words of
`the sentence are the Government’s, not the court’s.
`What the Payne court actually said in the “regardless”
`clause is, “regardless of whether the death penalty is
`sought by the prosecution or ultimately found
`appropriate by the factfinder or the court.” Id.
`(emphasis added). Payne did not involve a crime for
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`13
`which the death penalty could not be constitutionally
`imposed. Rather, Payne argued not that death could
`not be imposed for the murders he committed, but that
`it was not sought or imposed against him. Thus,
`Payne involved only the preposterous and easily-
`disposed-of argument that the federal limitations
`period varies from case to case, depending upon
`whether the prosecution seeks the death penalty or
`even whether the jury imposes it when it is sought.
`Payne did not even remotely involve the question
`presented here, and the Government’s attempt to
`ascribe to the court words it did not say only
`underscores the lack of any inconsistency between
`Mangahas and Payne.
`United States v. Ealy, 363 F.3d 292 (4th Cir.), cert.
`denied, 543 U.S. 862 (2004), is also inapposite. Ealy,
`like the defendant in Payne, was convicted of murders
`for which death was an available sentence but was not
`imposed in his case. In addition to making the
`argument rejected in Payne that § 3281 did not apply
`because he was not punished by death, Ealy also
`argued that it did not apply because the death penalty
`was unconstitutional generally under Furman v.
`Georgia, 408 U.S. 238 (1972). See Ealy, 363 F.3d at
`296. The Fourth Circuit rejected both arguments. As
`to the second, it wrote that “even if imposition of the
`death penalty would be unconstitutional, all of the
`violations alleged in this case are still ‘capital crimes’
`for limitations purposes under §§ 3281-3282.” 363
`F.3d at 297. But Furman v. Georgia was not like
`Coker v. Georgia, 433 U.S. 584 (1977). As this Court
`made clear four years later in Gregg v. Georgia, 428
`U.S. 153 (1976), Furman held only that the death
`penalty as then applied was unconstitutional, not that
`it could never be constitutionally imposed for the
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`14
`crime of murder. See Gregg, 428 U.S. at 169-87
`(plurality opinion). Coker, on the other hand, was
`categorical that under the Eighth Amendment, death
`can never be imposed for non-fatal rape of an adult.
`Coker, 433 U.S. at 592 (“We have concluded that a
`sentence of death is a grossly disproportionate and
`excessive punishment for the crime of rape, and is
`therefore forbidden by the Eighth Amendment as
`cruel and unusual punishment.”) That important
`distinction was never at issue and was therefore never
`addressed in Ealy.
`The other cases the Government cites as
`“inconsistent” with CAAF’s reading of Art. 43, see
`Briggs Pet. at 24-25, are all distinguishable for the
`same reason: like Payne and Ealy, they did not
`involve a crime
`that could not, under any
`circumstances, be punished by the death penalty. As
`CAAF said in Mangahas in response to the same
`“inconsistency” argument, “[h]ere . . . the death
`penalty is simply unavailable for the charged offense
`on constitutional grounds. We need not and do not
`decide today what potentiality or procedural posture
`equates to punishable by death. We simply hold that
`where the death penalty could never be imposed for
`the offense charged, the offense is not punishable by
`death for purposes of Article 43, UCMJ.” Mangahas,
`77 M.J. at 224-25 (emphasis in original). No civilian
`court of appeals has ever held otherwise under § 3281.
`II. CAAF’s Reasonable Interpretation of Art. 43(a),
`UCMJ is Entitled to Deference.
`CAAF plays a unique role in the federal justice
`system. Although an Article I court, Congress, in
`recognition of t