UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

BURTON, HAGLER, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellant 

v. 

Private E1 ANTONIO T. MOORE 

United States Army, Appellee 

ARMY MISC 20180692 

Headquarters, 25th Infantry Division 

Kenneth Shahan, Military Judge 

Colonel Ian R. Iverson, Staff Judge Advocate 

For Appellant: Captain Allison L. Rowley, JA (argued); Colonel Steven P. Haight, 

JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Catharine M. Parnell, JA; 

Captain Allison L. Rowley, JA (on brief); Lieutenant Colonel Eric K. Stafford, JA; 

Captain Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on reply brief). 

For Appellee: Captain Benjamin J. Wetherell, JA (argued); Lieutenant Colonel 

Christopher D. Carrier, JA; Major Jack D. Einhorn, JA; Captain Benjamin A. 

Accinelli, JA; Captain Benjamin J. Wetherell, JA (on brief). 

3 July 2019 

----------------------------------------------------------------------

MEMORANDUM OPINION AND ACTION ON APPEAL 

BY THE UNITED STATES FILED PURSUANT TO 

ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE 

---------------------------------------------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

HAGLER, Judge: 

The United States appeals the ruling of a military judge dismissing one 

specification and partially dismissing another specification based on an amendment 

occurring after the expiration of the statute of limitations. 

We first address whether we have jurisdiction over an appeal of a partial 

dismissal under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 

[hereinafter UCMJ]. After concluding that we do, we reverse the military judge’s 

ruling for both specifications. 
MOORE—ARMY MISC 20180692 

2 

BACKGROUND 

As it remains integral to our analysis of the military judge’s ruling (and 

provides context to the analysis of our dissenting colleague), the unique procedural 

history of this case warrants an extended discussion.1

A. The Initial Trial

 In 2014, a panel of officers sitting as a general court-martial convicted 

appellee, contrary to his pleas, of two specifications of willfully disobeying a 

superior commissioned officer, six specifications of sexual assault, and one 

specification of assault consummated by battery, in violation of Articles 90, 120, 

and 128, UCMJ. The panel sentenced appellee to a dishonorable discharge, 

confinement for twenty years, forfeiture of all pay and allowances, and reduction to 

the grade of E-1. The convening authority approved the adjudged sentence. 

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

for five of the six sexual assault specifications, affirmed the remaining findings of 

guilty, and authorized a rehearing on the impacted specifications. United States v. 

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

2017) (mem. op.). Our superior court affirmed. United States v. Moore, 2018 CAAF 

LEXIS 63 (C.A.A.F. 10 Jan. 2018). 

B. The Rehearing 

After appellee’s case was returned to the convening authority, the government 

elected to pursue a rehearing for the five specifications that were set aside. Notably, 

rather than proceeding with the same charged language from the initial trial, trial 

counsel instead amended these specifications prior to referral. More specifically, for 

each specification, trial counsel changed the bodily harm language from “removing 

[AR’s] underwear, placing his hands on her buttocks, and pressing her down with his 

hands” to “by penetrating [AR’s] vulva with his penis.” 

 

1

 When reviewing matters under Article 62, UCMJ, we may act only with respect to 

matters of law. United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). While we 

limit our holding to the legal issues presented, we provide a broader factual and 

procedural picture for context. To be clear, we “may not make findings of fact” and 

nothing in this opinion should be construed as extending beyond our express factual 

limitations. United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995). 

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

3 

At the rehearing, the defense did not object to these changes prior to entry of 

pleas. Instead, before closing arguments, the defense moved to dismiss three of the 

amended specifications as being outside the statute of limitations. The military 

judge put the court in recess to allow the government to prepare its response, and the 

military judge and counsel subsequently held two conferences pursuant to Rule for 

Courts-Martial (R.C.M.) 802. 

Upon reopening the court, the military judge explained they had discussed 

“the narrowing of the issues that we need to resolve, which we all appear to agree is 

whether the changes are a major change or a minor change.” The military judge also 

directed the parties to United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017), which he 

“would likely be relying upon . . . in analyzing the change issue in this case.” 

Following argument by the parties, the military judge issued a ruling for each 

of the amended specifications. Essentially, after the defense moved to dismiss three 

specifications, the military judge provided a ruling addressing all five specifications. 

In his ruling, the military judge applied Reese in determining that each of the 

amendments constituted major changes, but he reached separate conclusions over the 

appropriate remedy. 

First, for the three specifications encompassed in the defense motion, the 

military judge dismissed the specifications as being “barred from prosecution due to 

the running of the statute of limitations.” The military judge stated that any minor 

changes “would not be problematic,” but “because the changes are major,” the 

government did not provide the specifications to the relevant convening authority 

within the statute of limitations. 

Next, for the two specifications that were not part of the defense motion, the 

military judge concluded “the major change created a requirement for a new Article 

32 Preliminary Hearing,” but the defense “waived both an objection to the major 

change and a motion for a defective referral” by failing to make a timely objection. 

The military judge noted the defense had “raised the possibility of a motion for a 

new Article 32 Preliminary Hearing,” which meant “they were clearly aware of the 

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

statute of limitations concern with these two specifications. 

Unlike the three specifications within the defense motion, these two 

specifications involved conduct occurring on or after 28 June 2012 (i.e. the revised 

Article 120). As outlined below, the military judge later found that “[a]ll counsel at 

trial, and the military judge, overlooked the fact that the effective date of 

elimination of the statute of limitations for the ‘new’ Article 120 was 26 December 

2013,” and that the timeframe of these specifications fell into the “window” between 

the effective date of the statute (28 June 2012) and the elimination of the statute of 

limitations (26 December 2013). 
MOORE—ARMY MISC 20180692 

4 

The government did not appeal the ruling dismissing three specifications, and 

the military judge convicted appellee of the two remaining specifications of sexual 

assault (Specifications 2 and 3 of Additional Charge I). At the combined sentence 

rehearing, which included the additional convictions previously affirmed by this 

court, the military judge sentenced appellee to a dishonorable discharge and 

confinement for thirteen years. 

C. The Post-Trial Motion to Dismiss 

Prior to authentication, the defense filed a “Motion to Reverse Findings of 

Guilt and [to] Dismiss Specifications 2 and 3 of Additional Charge I.”3

 

In this filing, the defense asserted: (1) the statute of limitations for these two 

specifications – like the previously dismissed three specifications – was five years; 

(2) the military judge had already determined the amendments to these specifications 

constituted major changes; and (3) appellee “was not aware of his right to assert the 

statute of limitations and was not advised by the court of the right.” In support of 

its motion, the defense cited R.C.M. 907(b)(2)(B), which states “[i]f it appears the 

accused is unaware of the right to assert the statute of limitations in bar of trial, the 

military judge shall inform the accused of this right.” 

In response, the government did not challenge the statute of limitations, but 

instead argued: (1) the amendments were not major changes; (2) the defense 

“tactically waived” the right to object to the amendments; and (3) the government 

was not barred from prosecuting the offenses based on Article 43(g), UCMJ. The 

government also cited to Musacchio v. United States, in which the Supreme Court 

stated that a “district court’s failure to enforce an unraised limitations defense under 

[18 U.S.C.] § 3382(a) cannot be a plain error.” 136 S. Ct. 709, 718 (2016). 

In reply, the defense disputed the applicability of Article 43(g), UCMJ, and 

reiterated its arguments regarding a major change and that counsel were “clearly 

unaware of the statute of limitations applicability to these two specifications and 

thus could not apprise the accused.” 

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

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

concluded that “Musacchio did not address the affirmative duty to bring the 

statutory bar to the attention of the accused imposed on the trial judge by R.C.M. 

907(b)(2)(B), which has no civilian equivalent.” 78 M.J. at 535. 

 

3

 While the defense referenced a potential Article 39(a) session, both sides requested 

the military judge issue a ruling based on their written pleadings. 
MOORE—ARMY MISC 20180692 

5 

D. The Military Judge’s Ruling

The military judge issued a written ruling granting the defense motion in part. 

Specifically, the military judge granted the motion for Specification 3 of Additional 

Charge I, but he found that only a portion of Specification 2 of Additional Charge I 

fell outside the statute of limitations. As such, the military judge said he would 

issue new findings that retained “a finding of guilty for the period [within the statute 

of limitations].” 

In his analysis, the military judge reaffirmed his previous ruling that the 

amendments constituted major changes. Among other things, the military judge 

concluded “the change was not fairly included in the original specification,” as the 

government “changed the manner in which the offense was alleged to be committed” 

and “no longer had to prove that the sexual act was brought about by additional 

force beyond the penetration.” 

The military judge also rejected the government’s argument regarding Article 

43(g), UCMJ. In particular, the military judge stated this clause “only [applies] to 

when charges or specifications are dismissed as defective or insufficient,” and the 

specifications in this case were “set aside based on [Hills].” 

 Next, the military judge concluded the relevant statute of limitations was five 

years. To this extent, the military judge stated that “[a]ll counsel at trial, and the 

military judge, overlooked the fact that the effective date of elimination of the 

statute of limitations for the ‘new’ Article 120 was 26 December 2013, and that the 

charged offenses were allegedly committed during the 18 month ‘window’ between 

28 June 2012 and 26 December 2013.” 

Finally, the military judge rejected the government’s argument regarding 

waiver. For this issue, the military judge placed heavy reliance on R.C.M. 

907(b)(2)(B), as he found the rule “places an affirmative obligation upon the 

military judge to inform an accused of the right to assert the statute of limitations in 

bar of trial, if it appears that the accused is unaware of this right.” 

The military judge added that a “plain reading of this rule is that if the 

military judge has not done so when it is required, then the accused has not waived 

his right to assert the defense,” and “[t]he Court has no doubt that had the Defense 

been aware of the statute of limitations, they would have objected, as evidenced by 

the fact that they lodged an objection to the other specifications that they recognized 

did fall outside the statute of limitations.” To distinguish Musacchio, the military 

judge favorably cited to Collins and then determined “[t]he situation here is nearly 

identical.” 
MOORE—ARMY MISC 20180692 

6 

E. The Government’s Appeal

 Following the military judge’s ruling, the government filed a timely notice of 

appeal pursuant to R.C.M. 908. This notice explained, “The subject of the 

Government appeal will be the Military Judge’s ruling to dismiss Specification 3 of 

Additional Charge I and partial dismissal of Specification 2 of Additional Charge I.” 

On appeal, the parties dispute whether we have jurisdiction regarding the 

partially dismissed specification and whether the military judge erred in his ruling. 

We address both issues below. 

LAW AND DISCUSSION 

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

Appellee asserts we lack jurisdiction over Specification 2 of Additional 

Charge I, as the military judge’s ruling does not “terminate[] the proceedings with 

respect to” this specification. See UCMJ art. 62(a)(1)(A). In response, the 

government argues that a partial dismissal is not fatal to this court’s jurisdiction and 

cites to a multitude of cases interpreting 18 U.S.C. § 3731 (the federal civilian 

statute addressing government appeals). For the reasons outlined below, we find 

that we have jurisdiction over this specification. 

1. Law and Standard of Review 

We review issues of statutory interpretation and jurisdiction de novo. United 

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

74 M.J. 1, 5 (C.A.A.F. 2014)). We look first to the text of the statute – if the 

statutory language is unambiguous, the statute’s plain language will control. Id. 

(citations omitted).4

 

4

 In the National Defense Authorization Act for Fiscal Year 2017, Congress added a 

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

this section shall be liberally construed to effect its purposes.” Pub. L. No. 114-328, 

§ 5326, 130 Stat. 2000, 2929 (2016). Critically, this amendment “will not apply to 

cases in which charges were already referred to trial on the effective date.” 

Jacobsen, 77 M.J. at 87 n.5 (citing Pub. L. No. 114-328 at § 5542(a), 130 Stat. at 

2967). Therefore, as the charges in this case were referred to trial prior to the 

effective date of the amendment, this clause is not relevant to our resolution of the 

jurisdictional issue. 
MOORE—ARMY MISC 20180692 

7 

In the context of Article 62, UCMJ, it is also proper for courts to look to cases 

interpreting 18 U.S.C. § 3731 for guidance. Id. at 86 (citing United States v. 

Browers, 20 M.J. 356, 359 (C.M.A. 1985)). As our superior court (CAAF) has 

noted, “Congress authorized federal civilian government appeals in criminal cases 

under 18 U.S.C. § 3731 before it authorized them in the military, and modeled 

Article 62, UCMJ, in large part, after 18 U.S.C. § 3731.” Id. (citation omitted). Put 

another way, “Congress, in enacting the revised Article 62, UCMJ, in 1983, clearly 

intended to afford the government a right to appeal which, ‘to the extent practicable 

. . . parallels 18 U.S.C. § 3731.’” United States v. Lopez de Victoria, 66 M.J. 67, 70 

(C.A.A.F. 2008) (ellipsis in original) (quoting S. Rep. No. 98-53, at 23 (1983)). 

Our superior court has been clear, however, that “[f]ederal court decisions 

interpreting 18 U.S.C. § 3731 constitute guidance, not binding precedent, in the 

interpretation of Article 62.” United States v. Wuterich, 67 M.J. 63, 71 (C.A.A.F. 

2008). Furthermore, any analysis of Article 62 must also “take into account the 

structural differences between courts-martial and trials in federal district court, as 

well as the textual similarities and differences with respect to Article 62, UCMJ, and 

18 U.S.C. § 3731.” Id. 

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

In relevant part, Article 62, UCMJ, states that the United States may appeal 

“[a]n order or ruling of the military judge which terminates the proceedings with 

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

By comparison, the relevant section of 18 U.S.C. § 3731 states that the United 

States can appeal “a decision, judgment, or order of a district court dismissing an 

indictment or information or granting a new trial after verdict or judgment, as to any 

one or more counts, or any part thereof, except that no appeal shall lie where the 

double jeopardy clause . . . prohibits further prosecution.” 

As such, the plain language of 18 U.S.C. § 3731 appears to contain a 

modifying clause – “or any part thereof” – that is not contained within Article 62, 

UCMJ. The parties have not cited, and we have not yet found, any military case 

squarely addressing this issue in the context of partial dismissals. On this point, 

however, we find that a closer look at the federal case law and legislative history 

regarding 18 U.S.C. § 3731 is illuminating. 

In particular, 18 U.S.C. § 3731 did not contain the phrase “or any part 

thereof” until 2002, and there is ample case law interpreting the prior statutory 

language. Most notably, in Sanabria v. United States, the Supreme Court stated in a 

footnote, “We agree with the Court of Appeals . . . that there is no statutory barrier 

to an appeal from an order dismissing only a portion of a count.” 437 U.S. 54, 69 

n.23 (1978). The Court analyzed the term “count” and determined that “Congress 
MOORE—ARMY MISC 20180692 

8 

could hardly have meant appealability to depend on the initial decision of a 

prosecutor to charge in one count what could also have been charged in two, a 

decision frequently fortuitous for purposes of the interests served by § 3731.” Id. 

The Court added, “To so rule would import an empty formalism into a statute 

expressly designed to eliminate ‘[technical] distinctions in pleadings as limitations 

on appeals by the United States.’” Id. (quoting H.R. Conf. Rep. No. 91-1768, p. 21 

(1970)) (alteration in original); accord, S. Rep. No. 91-1296, p. 5 (1970).5 

Within its pleadings, the government provided citations to numerous federal 

courts that reached the same conclusion regarding the previous version of 18 U.S.C. 

§ 3731. See, e.g., United States v. Serafini, 167 F.3d 812, 814-16 (3d Cir. 1999); 

United States v. Hill, 55 F.3d 1197, 1199-1200 (6th Cir. 1995); United States v. 

Bloom, 149 F.3d 649, 652-54 (7th Cir. 1998); United States v. Martin, 733 F.2d 

1309, 1310 (8th Cir. 1984); United States v. Marubeni America Corp., 611 F.2d 763, 

764-65 (9th Cir. 1980); United States v. Oakar, 111 F.3d 146, 149-150 (D.C. Cir. 

1997). 

In fact, the primary precipitating event for the amendment to 18 U.S.C. § 

3731 appeared to be the fact that, despite the language of Sanabria, “one federal 

circuit court . . . held that [the statute] does not permit any government appeals from 

the dismissal of only part of a count.” H.R. Rep. No. 107-685, at 188 (2002) (citing 

United States v. Louisiana Pacific Corporation, 106 F.3d 345 (10th Cir. 1997)). To 

this extent, “[t]he proposed amendment” was designed to “make clear that dismissals 

of any part of a count are subject to appeal by the United States in appropriate 

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

the existing analysis of the majority of the circuit courts. 

3. Jurisdiction of Partial Dismissals under Article 62, UCMJ 

 In light of the foregoing, we conclude that we have jurisdiction regarding 

Specification 2 of Additional Charge I. While we acknowledge the textual 

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

 

5

 Writing separately, Justice Stevens explained he could not “join that portion of the 

Court’s decision which states that the Criminal Appeals Act permits an appeal from 

only a portion of a count,” and he referred to that portion of the opinion as “dictum.” 

Sanabria, 437 U.S. at 78-80 (Stevens, J., concurring). Other courts, to include the 

Seventh Circuit, have concluded, “Sanabria’s treatment of § 3731 was not dictum. 

It was no stray remark or aside. It explains the Court’s rationale and thus is part of 

the holding.” United States v. Bloom, 149 F.3d 649, 652-54 (7th Cir. 1998); see also 

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

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

9 

Court’s analysis of the phrase “count” in Sanabria and our required analysis of the 

phrase “specification” in this case. 

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

the extensive case law regarding the prior version of § 3731, would constitute the 

same type of “empty formalism” rejected in Sanabria. 437 U.S. at 69 n.23. On this 

point, we again note that the Sanabria majority (and the majority of federal circuit 

courts) did not adopt the view of Justice Stevens that the previous version of § 3731 

“clearly does not” permit an appeal “from only a portion of a count.” Id. at 80 

(Stevens, J., concurring); see also note 5, infra. 

We find this case is readily distinguishable from Jacobsen, in which this court 

found a lack of jurisdiction related to a different clause of Article 62, UCMJ. In that 

case, our superior court agreed that § 3731 was “instructive in some respects,” but 

the government’s position “conflict[ed] with the language and structure of Article 

62, UCMJ, and [our superior court’s] precedent.” 77 M.J. at 86-87. We do not find 

the same degree of textual, structural, and precedential conflicts in this case. 

Furthermore, unlike in Jacobsen, we find the federal case law provides useful 

guidance towards analyzing the relevant predicate phrase in this case, and we have 

not found a clear statement of legislative intent that would subvert our conclusion. 

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

After answering the jurisdictional question in the affirmative, we next address 

the military judge’s ruling.6

 

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

For the reasons outlined below, we find the military judge erred in concluding 

the amendments constituted a major change. As such, and unlike our dissenting 

colleague, we need not analyze the interplay between R.C.M. 603, R.C.M. 905, and 

R.C.M. 907(b)(2)(B). Simply put, if there is no major change, then there is no 

statute of limitations issue. 

“Whether a change made to a specification is minor is a matter of statutory 

interpretation and is reviewed de novo.” Reese, 76 M.J. at 300 (citing United States 

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

 

6

 Appellee also moved to dismiss this appeal based on an alleged violation of the 

timelines from the Joint Rules of Appellate Procedure. In response, the government 

provided several documents substantiating the process and timeline associated with 

its appeal. Pursuant to our review of the record, we find no violation and deny 

appellee’s motion to dismiss. 
MOORE—ARMY MISC 20180692 

10 

R.C.M. 603(a) provides that “[m]inor changes in charges and specifications 

are any except those which add a party, offenses, or substantial matter not fairly 

included in those previously preferred, or which are likely to mislead the accused as 

to the offenses charged.” Id. (quoting United States v. Moreno, 46 M.J. 216, 218 

(C.A.A.F. 1997)). The R.C.M. 603(a) Discussion clarifies what constitutes a minor 

change and includes, inter alia, “those [changes] necessary to correct inartfully 

drafted or redundant specifications; to correct a misnaming of the accused; to allege 

the proper article; or to correct other slight errors.” 

R.C.M. 603(d) provides that, when “[c]hanges or amendments to charges or 

specifications other than minor changes [are] made over the objection of the accused 

. . . the charge or specification affected [must be] preferred anew.” See also Reese, 

76 M.J. at 300-02. The plain language of R.C.M. 603(d) does not discuss prejudice, 

and our superior court has overruled any precedent requiring a separate showing of 

prejudice. Reese, 76 M.J. at 301-02. 

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

First, the initial and amended specifications both alleged sexual assault by 

penetrating AR’s vulva with the accused’s penis by bodily harm. In fact, as 

amended, the alleged act of bodily harm was “penetrating [AR’s] vulva with [the 

accused’s] penis.” Thus, it is hard to conclude the amended language was not 

“fairly included” in the initial specification, as this language was already there. 

Second, in Reese, the CAAF explicitly acknowledged that “changing the 

means by which a crime is accomplished may constitute a slight error under the 

appropriate circumstances.” Id. at 301 (citation omitted). To the extent that the 

amendments in this case may have technically “[changed] the means by which [the] 

crime was accomplished,” this case presents the type of “appropriate circumstances” 

in which any such error would be “slight.” We simply do not see how the 

amendments in this case added “a party, offenses, or substantial matter not fairly 

included in those previously preferred.” R.C.M. 603(a). 

Third, and relatedly, the amendments could hardly have “[misled] the accused 

as to the offenses charged.” See id. Our superior court’s rationale in Reese is 

important here. As part of its analysis, the court expressly noted the “question of 

whether Reese was on notice that he would need to defend against a touching 

charge” and found the government’s arguments on this issue to be “unconvincing.” 

Reese, 76 M.J. at 301. Indeed, “[t]he evil to be avoided is denying the defendant 

notice of the charge against him, thereby hindering his defense preparation.” Id. at 

300 (citation omitted). In light of this analysis, it is clear that notice is still a 

critical component of major change issues. 
MOORE—ARMY MISC 20180692 

11 

In Reese, the government amended a specification from licking the victim’s 

penis with appellant’s tongue to touching the penis with his hand, a change based on 

the victim’s deposition two days before trial. One can plainly see how such a 

change would negatively affect the defense’s approach and preparation for trial. 

In the present case, we see no such hindrance. The government made the 

changes months before trial. If the defense intended to offer that the penetration did 

not occur, or that the acts were consensual, these avenues were not foreclosed by the 

amended specifications. The government would still have to prove penetration and 

lack of consent beyond a reasonable doubt, just as if the defense had offered these 

theories on the initial specifications. In sum, there is no reason to conclude the 

defense was deprived of notice or a reasonable opportunity to defend against the 

amended specifications.7

We do acknowledge that, in Reese, the CAAF explicitly held that R.C.M. 

603(d) does not have a separate prejudice component. 76 M.J. at 301-02. That said, 

we do not read Reese to negate the full language of R.C.M. 603(a). Specifically, in 

our view, Reese does not preclude us from considering the likelihood of misleading 

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

Reese to encourage appellate courts to consider both “unfair surprise” and similar 

concepts to avoid the underlying “evil” it identified: insufficient notice to the 

accused. 

CONCLUSION 

The appeal of the United States pursuant to Article 62, UCMJ, is GRANTED 

and the decision of the military judge is therefore SET ASIDE. We return the record 

of trial to the military judge for action consistent with this opinion. 

Senior Judge BURTON concurs. 

 

7

 We are keenly aware that our superior court is analyzing a related issue in United 

States v. Stout, ARMY 20120592, 2018 CCA LEXIS 174 (Army Ct. Crim. App. 9 

Apr. 2018) (mem. op.), rev. granted, 78 M.J. 93 (C.A.A.F. 2018). To the extent that 

our superior court provides clarifying guidance that impacts this case, we stand 

ready to re-examine our analysis. 
MOORE—ARMY MISC 20180692 

12 

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

While I concur with the majority’s analysis of the jurisdiction issue, I 

disagree with their conclusion that the amendments constituted a minor change. 

Therefore, I respectfully dissent. As outlined below, I would find the military judge 

did not err in: (1) concluding the amendments constituted a major change; (2) 

determining that appellee did not waive the issue; and (3) rejecting the government’s 

argument regarding Article 43(g), UCMJ. 

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

Like the military judge, I would find the amendments constituted a major 

change. In this case, the government changed the bodily harm language from 

“removing [AR’s] underwear, placing his hands on her buttocks, and pressing her 

down with his hands” to “penetrating [AR’s] vulva with his penis.” In analyzing 

this issue, the military judge cited to Reese and concluded, in various parts of his 

rulings, that “the manner of the offense was significantly changed,” “the change was 

not fairly included in the original specification,” and the government no longer had 

to prove “that the sexual act was caused by the [originally] charged actions.” 

While this case is a closer call than Reese, I would similarly conclude that the 

amendments constituted a major change. In particular, the changes “altered the 

means of committing the offense.” Reese, 76 M.J. at 300. Based on the original 

charge, the government had to prove offensive touchings beyond the alleged 

penetration, and a potential defense would involve proving that such touchings did 

not occur (or did not cause the sexual act). In my view, changing the bodily harm 

from multiple overt offensive touchings to the sexual penetration itself does not 

“constitute a slight error.” Id. at 301. 

Furthermore, amending the specification created an additional element. The 

military judge correctly noted the change required “the Government to now prove 

[AR] did not consent” as an element. See United States v. McDonald, 78 M.J. 376 

(C.A.A.F. 2019) (affirming three elements exist when the actus reus and the bodily 

harm for the sexual assault are the same physical act); accord Dep’t of the Army, 

Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 3-45-14 n.2 (10 Sep. 

2014) (“When the same physical act is alleged as both the actus reus and bodily 

harm for the charged sexual assault, include . . . a final [third] element.”). I cannot 

agree with the majority opinion that an amendment, which changes the number of 

elements for a specification, is minor in nature. 

For the above reasons, I would find the military judge did not err in finding 

the changes were major. This, however, does not end the analysis. 
MOORE—ARMY MISC 20180692 

13 

The government has repeatedly pointed to the full language of R.C.M. 603(d), 

which states that major changes “may not be made over the objection of the 

accused.” (emphasis added). To be clear, I do not seek to diminish the importance 

of this language, nor have I ignored its connection to R.C.M. 905. Under normal 

circumstances, I would find that an accused is not entitled to relief based on an 

untimely objection to an alleged major change. This case is not normal, as it 

requires an additional analysis of R.C.M. 907(b)(2)(B). 

Put another way, this issue cannot be analyzed in a vacuum. Instead, the 

language of R.C.M. 603(d) must be considered within the broader context of R.C.M. 

907(b)(2)(B), which places a separate, independent, and affirmative duty on the 

military judge. Thus, while I acknowledge the untimely nature of the defense 

objection, it simply does not impact the required analysis under R.C.M. 

907(b)(2)(B). 

2. Whether the Military Judge Erred in Finding Appellee Did Not Waive the Issue8

At trial and on appeal, the government asserts that appellee waived his right 

to object to the amendments and thus cannot assert the statute of limitations as a 

defense. I disagree, for many of the reasons cited by the military judge. 

More specifically, I would find the military judge correctly annotated the 

breadth, scope, and uniqueness of R.C.M. 907(b)(2)(B). See, e.g., United States v. 

Jesko, ARMY 20160439, 2018 CCA LEXIS 328, *5-8 (Army Ct. Crim. App. 29 Jun. 

2018) (mem. op.) (explaining how the rule places an “affirmative responsibility” on 

the military judge to determine that any potential waiver is knowing and voluntary). 

 At trial, the government argued that R.C.M. 907(b)(2)(B) was inapplicable 

because appellee “tactically waived” his right to object. The military judge directly 

addressed this argument in his ruling; among other things, the military judge stated 

 

8

 In their pleadings, the parties focus on waiver. I acknowledge there is another 

potential argument that appellee forfeited this issue by failing to raise this claim 

during trial. See United States v. Briggs, 78 M.J. 289 (C.A.A.F. 2019) (applying a 

plain error review for a statute of limitations claim raised for the first time on 

appeal). Under the facts of this case, I do not find this standard to be appropriate. 

At a minimum, the military judge’s ruling can be properly construed as a 

reconsideration of his earlier ruling during trial, which sua sponte addressed the two 

specifications at issue. See United States v. Neal, 68 M.J. 289, 296 (C.A.A.F. 2010) 

(explaining that until the record of trial is authenticated, the military judge “retains 

control over a court-martial” and may reconsider prior rulings). Regardless, this 

standard would not change my underlying analysis regarding R.C.M. 907(b)(2)(B). 
MOORE—ARMY MISC 20180692 

14 

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

that had the Defense been aware of the statute of limitations, they would have 

objected, as evidenced by the fact that they lodged an objection to the other 

specifications that they recognized did fall outside the statute of limitations.” The 

military judge also said that “all counsel” overlooked the effective date of the 

elimination of the statute of limitations. Nothing in the record contradicts these 

conclusions. 

In his ruling, the military judge also rejected the government’s arguments 

regarding Musacchio and stated that R.C.M. 907(b)(2)(B) “places an affirmative 

obligation upon the military judge to inform an accused of the right to assert the 

statute of limitations in bar of trial, if it appears that the accused is unaware of this 

right.” The military added that a “plain reading of this rule is that if the military 

judge has not [informed the accused] when it is required, then the accused has not 

waived his right to assert the defense.” 

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

highly instructive: 

In Musacchio, the Supreme Court reasoned that a statute 

of limitations defense is not jurisdictional and therefore 

the “defense becomes part of a case only if the defendant 

puts the defense in issue.” Id. Accordingly, “[w]hen a 

defendant does not press the defense, then, there is no 

error for an appellate court to correct—and certainly no 

plain error.” Id. The Supreme Court, however, made this 

decision in the context of a federal criminal prosecution 

governed by the Federal Rules of Criminal Procedure. We 

think that cases under the Rules for Courts-Martial are 

distinguishable. As indicated above, R.C.M. 907(b)(2)(B) 

requires the military judge to inform the accused of the 

right to assert the statute of limitations. The Federal 

Rules of Criminal Procedure have no analogous provision.

Accordingly, in a court-martial, R.C.M. 907(b)(2)(B) 

makes the statute of limitations “part of a case” whenever 

the accused has a statute of limitations defense and does 

not appear to know it. 

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

This rationale is strikingly similar to the analysis of Collins cited by the 

military judge. Indeed, shortly following Briggs, our superior court affirmed the Air 

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

Collins, __ M.J. __, 2019 CAAF LEXIS 231 (C.A.A.F. Mar. 12, 2019). 
MOORE—ARMY MISC 20180692 

15 

Finally, while not dispositive to my analysis, the discussion section of R.C.M. 

907(b)(2)(B) also supports the military judge’s ruling. This section states that “if 

new charges are drafted or a major amendment made after the statute of limitations 

has run, prosecution is barred.” See R.C.M. 907(b)(2)(B) discussion (internal 

citation omitted). The inclusion of this language strongly implies that military 

judges are required to identify and discuss such issues with an accused. 

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

 At trial, the government also asserted that it was “not barred from prosecuting 

[the amended specifications] because of [Article] 43(g).” Again, I disagree, for the 

same reason provided by the military judge. 

 

Article 43(g) provides a potential savings clause when “charges or 

specifications are dismissed as defective or insufficient for any cause” and the 

applicable statute of limitations “has expired” or “will expire within 180 after the 

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

In his ruling, the military judge stated this clause “only [applies] to when 

charges or specifications are dismissed as defective or insufficient,” and the 

specifications in this case were “set aside based on [Hills] and an unconstitutional 

application of [Mil. R. Evid.] 413.” The military judge noted the government 

“believes that this equates to a dismissal due to defective specifications,” but “the 

Court disagrees.” I do, too. The specifications at issue were never dismissed as 

being defective or insufficient, and any attempt to apply Article 43(g) is trying to fit 

a square peg into a round hole.9

 

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

the majority opinion. 

 

9

 On appeal, the government also argues, “Even assuming the amendments to [the 

specifications] constituted a major change . . . the receipt by the summary courtmartial convening authority of the original charge on 11 December 2013 tolled the 

statute of limitations as to the amended charge.” Any such argument was largely 

undeveloped at trial, and the government has cited to several cases that were not 

presented to the military judge. However, even upon review, none of these cases 

address a major change occurring after the expiration of the statute of limitations. 

Finally, as the issue is not before us, I take no position over whether the government 

can utilize Article 43(g) in seeking to re-prefer specifications that are dismissed 

based on a major change occurring after the statute of limitations expires. 
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: