## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, HAGLER, and FLEMING Appellate Military Judges

UNITED STATES, Appellant

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

ARMY MISC 20180692

Headquarters, 25th Infantry Division Kenneth Shahan, M ilitary Judge

Colonel Ian R. Iverson, Staff Ju dge Advocate

For Appellant: Captain Allison L . Rowley, JA (arg ued); Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. S tafford, JA; Captain Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on b rief); Lieuten ant Colonel Er ic K. Stafford, JA; Captain Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on reply brief).

For Appellee: Captain Benjamin J . Wetherell, JA (argued); Lieu tenant Colonel Christopher D. Carrier, JA; Majo r Jack D. Einhor n, JA; Captain Benjamin A. Accinelli, JA; Captai n Benjamin J. Wetherell , JA (on brief).

3 July 2019

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MEMORANDUM OPINION AND ACTION ON APPEAL

BY THE UNITED STATES FILED PURSUANT TO ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

HAGLER, Judge:

The United States appeals the ruling of a military judge dismis sing one specification and partially dism issing another sp ecification ba sed on an amendment occurring after the expiration of the statute of limitations.

We first address wheth er we have jurisdic tion over an appeal of a partial dismissal under Article 62, Uni form Code of Military Justice, 1 0 U.S.C. § 862 [hereinafter UCMJ]. A fter concluding that we do, we reverse th e military judge’s ruling for both sp ecifications.MOORE—ARMY MISC 20180692

2 BACKGROUND

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

A. The Initial Trial

In 2014, a panel of o fficers sitting as a gen eral court-martia l convicted appellee, contrary to his pleas, of two specifications of willf ully disobeying a superior commissioned officer, six specifications of sexual ass ault, and one specification of assault consumma ted by battery, in violation o f Articles 90, 120, and 128, UCMJ. The pan el sentenced appelle e to a dishonorable discharge, confinement for twenty years, for feiture of all pay and allowan ces, and reduction to the grade of E-1. The c onvening authority a pproved th e adjudge d sentence.

On appeal, pursuant to a Hills error, 2 this court set aside the find ings of guilty

for five of the six sex ual assault specifi cations, affirmed the remaining findings of guilty, and authorize d a rehearing on the i mpacted specificatio ns. United States v.

Moore , ARMY 20140875, 2017 CCA LEXIS 191 (Army Ct. Crim. App. 23 Mar

. 2017) (mem. op.). Our super ior court affirmed. United States v. Moore , 2018 CAAF LEXIS 63 (C.A.A.F . 10 Jan. 2018).

B. The Rehearing

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

1 When reviewing matters under Ar ticle 62, UCMJ, we may act only with respect to

matters of law. United States v. Gore , 60 M.J. 178, 185 (C.A.A.F. 2004). While we limit our holding to t he legal issues pres ented, we provide a b roader factual and procedural picture for context. To be clear, we “may not make findings of fact” and nothing in this opinio n should be construed a s extendin g beyond our express factual

limitations. United States v. Lincoln , 42 M.J. 31 5, 320 (C.A.A.F. 1995).

2 United States v. Hills , 75 M.J. 350 (C .A.A.F. 2016).MOORE—ARMY MISC 20180692

3 At the reheari ng, the defense did not object to these changes p rior to entry of pleas. Instead, before closing arguments, the defense moved to dismiss three of the amended specifications as being outside the statute of limitati ons. The military judge put the court in recess to allow the government to prepar e its response, and the military judge and counsel subsequently held two conferences pu rsuant to Rule for Courts-Martial ( R.C.M.) 802.

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

“would likel y be relying upon . . . in ana lyzing the change iss ue in this case.”

Following argument b y the parties, the mi litary judge issued a ruling for each of the amended specifications. Es sentially, after the defense moved to dismiss three specifications, the mi litary judge provide d a ruling addressing all five specifications. In his ruling, the mi litary judge applied Reese in determining t hat each of the amendments constituted major chang es, but he reach ed separate c onclusions over the appropriate remedy.

First, for the three specificati ons encompassed in the defense motion, the military judge dismissed the spe cifications as being “barred fr om prosecutio n due to the running of the sta tute of limitations.” The military judge stated that any minor changes “would not be problematic ,” but “because the changes ar e major,” the government did not pr ovide the specificatio ns to the relevant c onvening authority

within the statute of limitations.

Next, for the two specifications that were not part of the defe nse motion, the military judge concluded “the major change created a requiremen t for a new Article 32 Preliminary Hearing,” but the defense “waived both an object ion to the major change and a motion for a defec tive referral” by failing to mak e a timely objection. The military judge no ted the defense had “ raised the possibilit y of a motion for a new Article 32 Preliminary Heari ng,” which meant “they were cle arly aware of the

issue and chose not to file a mo tion” for these specifications. No one addressed a

statute of limitations concern with these two specifications.

Unlike the three specifications within the defense motion, thes e two specifications involved con duct occurri ng on or after 28 June 2012 (i.e. the revised Article 120). As outlined below, t he military jud ge later foun d that “[a]ll counsel at trial, and the military judge, overlooked the fact that the eff ective date of

elimination of the sta tute of limitations f or the ‘new’ Article 120 was 26 December 2013,” and that th e timeframe of these spe cifications fell into the “window” between

the effective date of the statute (28 June 2012) and the elimin ation of the statute of limitations (26 De cember 2013).MOORE—ARMY MISC 20180692

4 The government did not appeal the ruling dismissing three speci fications, and the military judge convicted appel lee of the two remaining spec ifications of sexual assault (Specifications 2 and 3 o f Additional Charge I). At th e combined sentence rehearing, which included the a dditional convictions previously affirmed by this court, the military judge sente nced appellee t o a dishonorable discharge and confinement for thirteen years.

C. The Post-Trial Motion to Dismiss

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

In this filing, the defe nse asserted: (1) the statut e of limita tions for these two specifications – like the previously dismissed three specificat ions – was five years; (2) the military judg e had already determine d the amendments to these specifications constituted major changes; and (3) appellee “was not aware of h is right to assert the

statute of limitations and was not advised by the court of the right.” In support of its motion, the defense cited R.C .M. 907(b)(2)(B), which states “[i]f it appears the accused is unaware of the right t o assert the statute of limita tions in bar of trial, the military judge shall inform the accused of this right.”

In response, the gover nment did not challe nge the statute of li mitations, but instead argued: (1) the amendments were not major changes; (2) the defense “tactically waived” the right to object to the amendments; and (3) the government was not barred from prosecutin g the offenses based on Article 4 3(g), UCMJ. The government also cited to Musacchio v. United States , in which the Supreme Court

stated that a “district court’s failure to enforce an unraised limitations de fense under [18 U.S.C.] § 3382(a) cannot be a plain error.” 136 S. Ct. 709 , 718 (2016).

In reply, the defense disputed the applicability of Article 43( g), UCMJ, and reiterated its arguments regardi ng a major chang e and that coun sel were “clearly unaware of the statute of limitations applicability to these tw o specifications and thus could not appri se the accused.”

Additionally, to distinguish Mussachio , the defense cited to United States v.

Collins , 78 M.J. 530 (A.F. Ct . Crim. App. 2018). In Collins , the Air Fo rce Court

concluded that “ Musacchio did not address the affirm ative duty to bring the statutory bar to the attention of the accused imposed on the tr ial judge by R.C.M. 907(b)(2)(B), which h as no civilian e quivalent.” 78 M.J. at 53 5.

3 While the defense referenced a potential Article 39(a) session , both sides requested the military judge issue a ruling based on their written pleadi ngs.MOORE—ARMY MISC 20180692

5 D. The Military Judge’s Ruling

The military judge issued a writt en ruling granti ng the defense motion in part. Specifically, the military judge granted the mo tion for Specifi cation 3 of Additional Charge I, but he foun d that only a portion of Specification 2 o f Additional Charge I fell outside the statute of limitations. As such, the military judge said he would issue new findings that retain ed “a finding of guilty for the p eriod [within the statute of limitations].”

In his analysis, the military jud ge reaffirmed h is previous rul ing that the amendments constituted major cha nges. Among other things, the military judge concluded “the change was not fairly included in the original s pecification,” as the government “changed the manner in which the offense was alleged to be committed” and “no longer ha d to prove that the sexu al act was brought abo ut by additional force beyond the penetration.”

The military judge also rejected t he government’s argument rega rding Article 43(g), UCMJ. In particular, the military judge stated this cla use “only [applies] to when charges or specifications are dismissed as defective or in sufficient,” and the specifications in this case were “set aside based on [ Hills ].”

Next, the military judge concluded the relevant statute of lim itations was five years. To this extent, the mil itary judge stated that “[a]ll c ounsel at trial, and the military judge, overlooked the f act that the effective date of elimination of the

statute of limitations for the ‘new’ Article 120 was 26 Decembe r 2013, an d that the charged offenses were allegedl y committed duri ng the 18 month ‘ window’ between

28 June 2012 and 2 6 December 2013.”

Finally, the military judge reject ed the government’s argument regarding waiver. For this issue, the mil itary judge place d heavy relian ce on R.C.M. 907(b)(2)(B), as he found the rul e “places an affi rmative oblig ation upon the military judge to inform an accused of the right to assert the statute of limitations in bar of trial, if it appears that the accused is un aware of this right.”

The military judge added that a “plain reading of this rule is that if the military judge has not done so wh en it is required, then the ac cused has not waived his right to ass ert the defense, ” and “[t]he C ourt has no doubt that had the Defense

been aware of the statute of lim itations, they wou ld have objec ted, as evidenced by the fact that they lodged an obj ection to the ot her specificati ons that they recognized

did fall outside the statute of limitations.” To distinguish Musacchio , the military judge favorably cited to Collins and then determined “[t]he situation her e is nearly

identical.”MOORE—ARMY MISC 20180692

6 E. The Government’s Appeal

Following the military judge’s ruling, the gover nment filed a timely notice of appeal pursuant to R.C .M. 908. This notice explained, “The sub ject of the Government appeal will be the M ilitary Judge’s ruling to dismis s Specification 3 of Additional Charge I and partial dismissal of Specification 2 of Additional Charge I.”

On appeal, the parties dispute whether we have jurisdiction reg arding the partially dismissed s pecification and wheth er the military judg e erred in his ruling.

We address both issues below.

LAW AND DISCUSSION

A. Appellee’s Jurisd ictional Challenge to Specification 2 of Ad ditional Charge I

Appellee asserts we lack jurisdiction ove r Specification 2 of A dditional Charge I, as the mi litary judge’s ruling d oes not “terminate[] the proceedings with respect to” this specification. See UCMJ art. 62(a)(1)(A). In response, the government argues that a partial dismissal is not fatal to this court’s jurisdiction and

cites to a multitude of cases interpreti ng 18 U.S.C. § 3731 (th e federal civilian statute addressing government a ppeals). For the reasons outlin ed below, we find that we have jurisdiction over this specification.

1. Law and Standard of Review

We review issues of statutory int erpretation and jurisdiction d e novo. United

States v. Jacobsen , 77 M.J. 81, 84 (C.A .A.F. 2017) (citing United States v. Vargas

, 74 M.J. 1, 5 (C.A.A.F . 2014)). We look fir st to the text of th e statute – if the statutory language is unambiguous, th e statute’s plain language will control. Id

. (citations omitted). 4

4 In the National Defense Author ization Act for Fiscal Year 2017 , Congress added a

liberal construction clause to Ar ticle 62, UCMJ, which states “ [t]he provisions of

this section sha ll be liberally construed to effect its purpose s.” Pub. L. No. 114-328, § 5326, 130 Stat. 2000, 2929 (2016). Cr itically, this amendmen t “will not apply to cases in which charges were alr eady referred to t rial on the ef fective date.”

Jacobsen , 77 M.J. at 87 n.5 (c iting Pub. L. No. 114 -328 at § 5542(a), 1 30 Stat. at 2967). Therefore, a s the charges in this case were referred to trial prior to the effective date of the amendment, this clause is not relevant to our resolut ion of the jurisdictional issue.MOORE—ARMY MISC 20180692

7 In the context of Article 62, UC MJ, it is also proper for court s to look to cases interpreting 18 U.S.C . § 3731 for guidance. Id . at 86 (citing United States v.

Browers , 20 M.J. 356, 359 (C .M.A. 1985)). A s our superior court (CAAF ) has noted, “Congress authorized federal civil ian government appeals in criminal cases under 18 U.S.C. § 3 731 before it authorized them in the militar y, and modeled Article 62, UCMJ, in large part, after 18 U.S.C. § 3731.” Id . (citation omitted). Put another way, “Congre ss, in enacting the r evised Article 62, UCM J, in 1983, clearly intended to afford the governmen t a right to appeal which, ‘to the extent practicable . . . parallels 18 U .S.C. § 3731.’” United States v. Lopez de Victoria , 66 M.J. 67, 70 (C.A.A.F. 2008) (ellip sis in original) (q uoting S. Rep. No. 98- 53, at 23 (1983)).

Our superior court has been clea r, however, that “[f]ederal cou rt decisions interpreting 18 U.S.C . § 3731 constitute gui dance, not binding precedent, in the interpretation of Article 62.” United States v. Wuterich , 67 M.J. 63, 71 (C.A.A.F. 2008). Furthermore, any analysis of Article 62 must also “take into account the

structural differences between courts-martial a nd trials in fed eral district court, as

well as the textual si milarities and differe nces with respect t o Article 62, UCMJ, and 18 U.S.C. § 3731.” Id

.

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

In relevant part, Art icle 62, UCMJ, states that the United Stat es may appeal “[a]n order or ruli ng of the military judge which terminates th e proceedings with

respect to a c harge or specification.” See art. 62(a)(1)(A), UCMJ.

By comparison, the relevant sect ion of 18 U.S.C. § 3731 states that the United States can appeal “a decision, j udgment, or order of a district court dismissing an indictment or information or gran ting a new trial after verdict or judgment, as to any

one or more counts, or any part thereof, e xcept that no appeal shall lie where the double jeopardy clause . . . proh ibits further prosecution.”

As such, the plain l anguage of 18 U.S.C. § 3731 appears to cont ain a modifying clause – “or any part thereof” – that is not containe d within Article 62, UCMJ. The parties have not cited, and we have not yet found, a ny military case squarely addressing thi s issue in the context of partial dismis sals. On this point, however, we find that a closer look at the federal case law and legislative history regarding 18 U.S .C. § 3731 is ill uminating.

In particular, 18 U.S.C. § 3731 di d not contain the phrase “or any part
thereof” until 2 002, and there is ample c ase law interpreting t he prior statutory language. Most notably, in Sanabria v. United States , the Supreme Court stated in a footnote, “We agree wit h the Court of Appea ls . . . that there is no statutor y barrier to an appeal from an order dis missing only a por tion of a count .” 437 U.S. 54, 69 n.23 (1978). The Court analyzed the term “co unt” and determine d that “CongressMOORE—ARMY MISC 20180692

8 could hardly have meant appealability to depend on the initial decision of a prosecutor to ch arge in one count what cou ld also have been cha rged in two, a decision frequently for tuitous for purposes of the interests se rved by § 3731.” Id

. The Court added, “To so rule wou ld import an empty formalism in to a statute expressly designed to e liminate ‘[technical ] distinctions in pl eadings as limitations on appeals by the Un ited States.’” Id . (quoting H.R. Conf. R ep. No. 91-1768, p. 21 (1970)) (alteration in original); accord , S. Rep. No. 91-1 296, p. 5 (1970). 5

Within its pleadings, the government provi ded citations to nume rous federal

courts that reached the same con clusion regardi ng the previous version of 18 U.S.C. § 3731. See, e.g.

, United States v. Serafini , 167 F.3d 812, 814-16 (3d Cir. 1999);

United States v. Hill , 55 F.3d 1197, 11 99-1200 (6th Cir. 1995); United States v.

Bloom , 149 F.3d 649 , 652-54 (7th Cir. 1998); United States v. Martin , 733 F.2d 1309, 1310 (8th C ir. 1984); United States v. Maru beni America Corp. , 611 F.2d 763, 764-65 (9th Cir. 1980); United States v. Oakar , 111 F.3d 146, 149-1 50 (D.C. Cir. 1997).

In fact, the prim ary precipitating event f or the amendment to 1 8 U.S.C. § 3731 appeared to be th e fact that, despite the language of Sanabria , “one federal

circuit court . . . hel d that [the statute] does not permit any government appeals from the dismissal of only part of a count.” H.R. R ep. No. 107-685, at 188 (2002) (citing

United States v. Louisi ana Pacific Corporation , 106 F.3d 345 (10th C ir. 1997)). To this extent, “[t ]he proposed amendment” w as designed to “make c lear that dismissals of any part of a count are subject to appeal by the United Stat es in appropriate

circumstances.” Id . In this vein, this amendment was meant to codify, not change

, the existing analysi s of the majority of the circuit courts.

3. Jurisdiction of Pa rtial Dismissals under Article 62, UCMJ

In light of the foregoing, we co nclude that we h ave jurisdicti on regarding Specification 2 of Additional Cha rge I. While we acknowledge t he textual

differences between the statutes, we find a natural syllogism b etween the Supreme

5 Writing separately, Justice Stev ens explained he could not “jo in that portion of the

Court’s decision which states th at the Criminal Appeals Act per mits an appeal from only a portion of a c ount,” and he referre d to that portion of the opinion as “dictum.”

Sanabria , 437 U.S. at 78-80 (Stevens, J., concurring). Other courts, t o include the Seventh Circuit, h ave concluded, “ Sanabria’s treatment of § 373 1 was not dictum. It was no stray remar k or aside. It explains the Court’s ratio nale and thus is part of the holding.” United States v. Bloom , 149 F.3d 649 , 652-54 (7th Cir. 1998); see also United States v. Serafini , 167 F.3d 812, 814-16 (3d. Cir. 1999) (s tating the Tenth

Circuit “stands alone” i n declining to follow the Sanabria majority).MOORE—ARMY MISC 20180692

9 Court’s analysis of t he phrase “count” in Sanabria and our required a nalysis of the phrase “specification” in this case.

In our view, any attempt to distinguish these terms, particula rly in light of

the extensiv e case law regarding the prior version of § 3731, w ould constitute the same type of “empty fo rmalism” rejected in Sanabria . 437 U.S. at 69 n.23. On this point, we again note that the Sanabria majority (and the major ity of federal circuit courts) did not adopt the view of Justice Stevens that the prev ious version of § 3731 “clearly does not” per mit an appeal “from only a portion of a c ount.” Id . at 80 (Stevens, J., concurring); see also note 5, infra.

We find this case is readily disti nguishable from Jacobsen , in which this court found a lack of jurisdi ction related to a different clause of A rticle 62, UCMJ. In that case, our superior court agreed t hat § 3731 was “instructive in some respects,” but the government’s posit ion “conflict[ed] wit h the language and s tructure of Article 62, UCMJ, and [our superior court ’s] precedent.” 77 M.J. at 86 -87. We do not find the same degree of tex tual, structural, a nd precedential confli cts in this case. Furthermore, unlike in Jacobsen , we find the federal cas e law provides useful guidance towards analyz ing the relevant pre dicate phrase in thi s case, and we have

not found a clear stat ement of legislative intent that would su bvert our co nclusion.

Id . at 84 n.4, 86-87.

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

B. Whether the Military Judge Erred in Findin g a Major Change

For the reasons outlined below, we find the military judge erre d in concluding the amendments constituted a maj or change. As s uch, and unlike our dissenting colleague, we need not analyze the interplay between R.C.M. 603 , R.C.M. 905, and R.C.M. 907(b)(2)(B). Simply put, if there is no major change, then there is no

statute of limitations issue.

“Whether a change made to a specification is minor is a matter of statutory interpretation and is reviewed de novo.” Reese , 76 M.J. at 300 (citing United States

v. Atchak , 75 M.J. 193, 195 (C .A.A.F. 2016)).

6 Appellee also moved to dismiss t his appeal bas ed on an alleged violation of the

timelines from the Joint Rules o f Appellate Procedure. In resp onse, the government provided several documents substantiating the process and timel ine associated with its appeal. Pursuan t to our review of the record, we find no v iolation and deny appellee’s motion to dismiss.MOORE—ARMY MISC 20180692

10 R.C.M. 603(a) provides that “[m]i nor changes in c harges and spe cifications are any except those which add a party, offenses, or substantia l matter not fairly included in those previously pre ferred, or which are likely to mislead the accused as to the offenses charged.” Id . (quoting United States v. Moreno , 46 M.J. 216, 218 (C.A.A.F. 1997)). The R.C.M. 603(a) Discu ssion clarifies what constitutes a minor change and includes, inter alia , “those [changes] necessa ry to correct inartfully drafted or redundant specifica tions; to correct a misnaming of the accused; to allege the proper article; or to correct other slight errors.”

R.C.M. 603(d) provides that, whe n “[c]hanges or amendments to c harges or specifications other tha n minor changes [are] made over the obj ection of the accused . . . the charge o r specification affect ed [must be] preferred anew.” See also Reese

, 76 M.J. at 300-02. Th e plain language of R .C.M. 603(d) does no t discuss prejudice, and our superior court has overru led any precedent requiring a separate showing of prejudice. Reese , 76 M.J. at 301-02.

For several reasons, w e conclude the amendments in this case we re minor.

First, the initial and amended specificatio ns both alleged sexu al assault by penetrating AR’s vulva with the accused’s penis by bodily harm. In fact, as amended, the alleged act of bodi ly harm was “penetrating [AR’s] vulva with [the accused’s] penis.” Thu s, it is hard to con clude the amended la nguage was not “fairly included” in the initial specification, as this languag e was already there.

Second, in Reese , the CAAF explici tly acknowledged t hat “changing the means by which a crime is accomplished may constitute a slight error under the appropriate circumstances.” Id . at 301 (citation om itted). To the e xtent that the amendments in this case may have technically “[changed] the mea ns by which [the] crime was accomplished,” this ca se presents the type of “approp riate circumstances” in which any such error would be “slight.” We simply do not se e how the

amendments in this case added “a party, offenses, or substantia l matter not fairly included in those previously preferred.” R.C.M. 603(a).

Third, and relatedly, the amendments could hardly have “[misled ] the accused as to the offenses charged.” See id . Our superior court’s rationale in Reese is important here. As part of its an alysis, the cour t expressly n oted the “question of

whether Reese was on no tice that he would n eed to defend agains t a touching charge” and found the government’s arguments on this issue to b e “unconvincing.”

Reese , 76 M.J. at 301. Ind eed, “[t]he evil to be avoided is denyin g the defendant notice of the charge against him , thereby hinderi ng his defense preparation.” Id . at 300 (citation omitted). I n light of this anal ysis, it is clear that notice is still a critical component of ma jor change issues.MOORE—ARMY MISC 20180692

11 In Reese , the government amende d a specification fro m licking the victi m’s penis with appellant’s tongue to touching the penis with his ha nd, a change based on the victim’s depositio n two days before tri al. One can plainly see how such a change would negatively affect t he defense’s approach and prepa ration for trial.

In the present case, we see no s uch hindrance. T he government made the changes months before trial. If the defense intended to offer that the penet ration did not occur, or tha t the acts were consensu al, these avenues were not foreclo sed by the amended specificatio ns. The government would still have to pro ve penetration and lack of consent beyond a reasonable doubt, j ust as if the defen se had offered these

theories on the initi al specifications. In sum, there is no re ason to conclude the defense was deprived of notice o r a reasonable o pportunity to d efend against the amended specifications. 7

We do acknowledge that, in Reese , the CAAF explicitly held that R.C.M. 603(d) does not have a separate prej udice component. 76 M.J. a t 301-02. T hat said,

we do not read Reese to negate the full language of R.C.M. 6 03(a). Specifically, i n our view, Reese does not preclude us from consi dering the likelihood of mislea ding

the accused in decidi ng whether a change is major in the first place. In fact, we read

Reese to encourage appellat e courts to consider b oth “unfair surpris e” and similar concepts to avoid the underlying “ evil” it identif ied: insuffic ient notice to the

accused.

CONCLUSION

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

Senior Judge BURTON concurs.

7 We are keenly aware that our superior court is analyzing a rel ated issue in United

States v. Stout , ARMY 20120592, 2018 C CA LEXIS 174 (Army C t. Crim. App. 9 Apr. 2018) (mem. op.), rev. granted , 78 M.J. 93 (C.A. A.F. 2018). To the extent that our superior court pr ovides clarifying guid ance that impacts th is case, we stand ready to re-examine our analysis.MOORE—ARMY MISC 20180692

12 FLEMING, Judge, concurring in part and disse nting in part:

While I concur with the majority’s analysis of the jurisdiction issue, I disagree with their conclusion that the amendments constituted a minor change. Therefore, I respectfully dissen t. As outlined below, I would find the military judge

did not err in: (1) concluding t he amendments con stituted a maj or change; (2) determining that appellee did not waive th e issue; and (3) reje cting the government’s argument regarding Art icle 43(g), UCMJ.

1. Whether the Military Judge Erred in Fi nding a Ma jor Change

Like the military judge, I would find the amendments constitute d a major change. In this case, the gover nment changed the bodily harm l anguage from “removing [AR’s] underwear, pla cing his hands on her buttocks, and pressing her down with his hands” to “penetrati ng [AR’s] vulva with his peni s.” In analyzing this issue, the milit ary judge cited to Reese and concluded, in various parts of his rulings, that “the manner of the offense was significantly chan ged,” “the change was not fairly included i n the original speci fication,” and the gov ernment no longer had to prove “that the sexual act was caused by the [originally] ch arged actions.”

While this case is a closer call than Reese , I would similarly conclude that the amendments constituted a major c hange. In partic ular, the chan ges “altered the

means of committin g the offense.” Reese , 76 M.J. at 300. Bas ed on the original charge, the government had to pr ove offensive touchings beyond the alleged penetration, and a po tential defense woul d involve proving that such touchings did not occur (or did not cause the sexual act ). In my view, chang ing the bodily harm from multiple overt o ffensive touchings to the sexual penetrati on itself does not “constitute a slight error.” Id . at 301.

Furthermore, amending the specification created an additional e lement. The military judge correctly noted the change required “the Governm ent to now prove [AR] did not consen t” as an element. See United States v. McDonald , 78 M.J. 376 (C.A.A.F. 2019) (affirm ing three elements e xist when the actus reus and the bodily

harm for the sexual assault are the sa me physical act); accord Dep’t of the Army, Pam. 27-9, Legal Services: Milit ary Judges’ Benc hbook, para. 3- 45-14 n.2 (10 Sep. 2014) (“When the same physical act is alleged as both the actus reus and bodily harm for the charged s exual assault, include . . . a final [thi rd] element.”) . I cannot agree with the major ity opinion that an am endment, which change s the number of elements for a specification, is minor in nature.

For the above reasons, I would fi nd the military judge did not err in finding the changes were major . This, however, doe s not end the analys is.MOORE—ARMY MISC 20180692

13 The government has rep eatedly pointed to th e full language of R .C.M. 603(d), which states that major ch anges “may not be made over the objection of the

accused .” (emphasis added). To be clea r, I do not seek to diminish t he importance of this language, nor have I i gnored its connection to R.C.M. 9 05. Under normal circumstances, I would find that an accused is not entitled to relief based on an untimely objection to an alleged major change. This case is no t normal, as it requires an additional analysi s of R.C.M. 907(b)(2)(B).

Put another way, this issue cannot be anal yzed in a vacuum. In stead, the language of R.C.M. 603( d) must be considere d within the broader context of R.C.M. 907(b)(2)(B), which pla ces a separate, inde pendent, and affirma tive duty on the military judge. Thus, while I a cknowledge the un timely nature of the defense objection, it simply do es not impact the re quired analysis unde r R.C.M. 907(b)(2)(B).

2. Whether the Milita ry Judge Erred in Finding Ap pellee Did Not Waive the Issue 8

At trial and on appeal, the government asse rts that appellee wa ived his right to object to the amendments and t hus cannot asser t the statute of limitations as a defense. I disagree, for many of the reasons cited by the mili tary judge.

More specifically, I would find the military judge correctly an notated the breadth, scope, and u niqueness of R.C.M. 907(b)(2)(B). See, e.g.

, United States v.

Jesko , ARMY 20160439, 2018 CCA LEXIS 328, *5-8 (Army Ct. Crim. App. 29 Jun. 2018) (mem. op.) (explaini ng how the rule pl aces an “affirmativ e responsibility” on the military judge to determine t hat any potential waiver is kn owing and voluntary).

At trial, the govern ment argued that R.C .M. 907(b)(2)(B) was i napplicable because appellee “tactically wai ved” his right to object. The military judge directly addressed this argument in his r uling; among oth er things, the military judge stated

8 In their pleadings, th e parties focus on w aiver. I acknowledg e there is another potential argumen t that appellee forfeited this issue by failing to raise this claim during trial. See United States v. Briggs

, 78 M.J. 289 (C.A.A.F . 2019) (app lying a plain error review for a statute of limitations claim raised fo r the first time on appeal). Under the fact s of this case, I do not find this stan dard to be appropriate. At a minimum, the military judge ’s ruling can be properly const rued as a

reconsiderat ion of his earlier ruling during tri al, which sua s ponte addressed the two specifications at issue. See United States v. Neal , 68 M.J. 289, 296 (C.A.A.F. 2010) (explaining that until the record of tri al is authenticated, the military judge “retains

control over a court-ma rtial” and may recon sider prior rulings) . Regardless, this

standard would not cha nge my underlying an alysis regarding R.C. M. 907(b)(2)(B).MOORE—ARMY MISC 20180692

14 “it was clear the Defense was unaware of the right” and “[t]he Court ha s no doubt

that had the Defense been aware of the statute of limitations, they would have objected, as evidenced by the f act that they lodged an objectio n to the other specifications that th ey recognized did fall outside the statut e of limitations.” The military judge also said that “all counsel” overl ooked the effe ctive date of the

elimination of the sta tute of limitations. Nothing in the reco rd contradicts these

conclusions.

In his ruling, the mi litary judge also reje cted the government’ s arguments regarding Musacchio and stated that R.C .M. 907(b)(2)(B) “plac es an affirmative obligation upon the mil itary judge to inform an accused of the right to assert the

statute of limitations in bar of trial, if it appears that the accused is unaware of this right.” The military added that a “plain reading of this rule is that if the military judge has not [informe d the accused] when it is required, then the accused has not waived his right to assert the defense.”

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

In Musacchio , the Supreme Court reasoned that a statute

of limitations defens e is not jurisdiction al and therefore the “defense becomes part of a case only if the defendant puts the defens e in issue.” Id . Accordingly, “[w]hen a defendant does not press the defense, then, there is no error for an appellate court to correct—and certainly no plain error.” Id . The Supreme Court, however, made this

decision in the cont ext of a federal cri minal prosecution governed by the Federal Rules of Criminal Procedure. We think that cases under the Rules for Courts-Martial are distinguishable. As indicated above, R.C.M. 907(b)(2)(B) requires the military judge to inform the accused of the right to assert the stat ute of limitations. The Federal

Rules of Criminal Procedure have no analogou s provision. Accordingly, in a court-mart ial, R.C.M. 907(b)(2)(B) makes the statute of limitation s “part of a ca se” whenever the accused has a statute of limitations defe nse and does

not appear to know it.

United States v. Briggs

, 78 M.J. 289, 295 (C.A.A.F. 2019) (emphasis added).

This rationale is strikingl y similar to th e analysis of Collins cited by the military judge. Indee d, shortly following Briggs , our superior court affirmed the Air

Force Court’s decision in Collins in a one-sentence opinion . United States v.

Collins , __ M.J. __, 2019 CAAF LEXIS 23 1 (C.A.A.F. Mar. 12, 2019).MOORE—ARMY MISC 20180692

15 Finally, while not dispositive t o my analysis, the discussion s ection of R.C.M. 907(b)(2)(B) also su pports the military j udge’s ruling. This s ection states that “if new charges are drafted or a major amendment made after the sta tute of limitations has run, prosecuti on is barred.” See R.C.M. 907(b)(2)(B) d iscussion (internal citation omitted). The inclusio n of this language strongly imp lies that military judges are requi red to identify and discu ss such issues with an accused.

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

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

Article 43(g) provides a potential savings clause when “charges or specifications are dismissed as defective or insuffici ent for any cause” and the applicable statute of limitations “has expired” o r “will expire within 180 after the

date of dismissal.” See UCMJ art. 43(g)(1) (emphasis added).

In his ruling, the mi litary judge stated th is clause “only [app lies] to when charges or specifications are d ismissed as defective or insuffi cient,” and the specifications in this case were “set aside based on [ Hills ] and an unconstitutional application of [Mil. R. Evid.] 413.” The military judge noted the government “believes that this equates to a dismissal due to defective spe cifications,” but “the Court disagrees.” I do, too. The specifi cations at issue were never dismissed as being defective or insufficient, and any attempt to apply Artic le 43(g) is try ing to fit a square peg in to a round hole. 9

In conclusion, I would affirm the military judge’s ruling and t hus dissent from the majorit y opinion.

9 On appeal, the government also argues, “Even as suming the amen dments to [the specifications] constituted a maj or change . . . the receipt by the summary courtmartial convening authority of the origi nal charge on 11 Decemb er 2013 tolled the

statute of limitations as to the amended charge.” Any such arg ument was largely undeveloped at trial, a nd the government has cited to several c ases that were not presented to the military judge. However , even upon review, no ne of these cases address a major change occurring after the expira tion of the st atute of limitations.

Finally, as the issue is not before us, I take no pos ition over whether the government can utilize Article 43(g) in seeki ng to re-prefer specification s that are dismissed based on a major chang e occurring after the statute of limitati ons expires.MOORE—ARMY MISC 20180692

16 FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: