This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Edzel D. Mangahas, Lieutenant Colonel

United States Air Force, Appellant

No. 17-0434

Crim. App. No. 2016-10

Argued October 11, 2017—February 6, 2018

Military Judges: Joseph S. Imburgia and Brendon K. Tukey

For Appellant: Terri R. Zimmerman, Esq. (argued); Major 

Todd M. Swensen, Major Johnathan D. Legg, and Jack B. 

Zimmerman, Esq. (on brief).

For Appellee: Lieutenant Colonel G. Matt Osborn (argued); 

Colonel Julie L. Pitvorec and Major Mary Ellen Payne (on 

brief).

Judge RYAN delivered the opinion of the Court, in 

which Chief Judge STUCKY, Judges OHLSON and 

SPARKS, and Senior Judge COX, joined. 

_______________

Judge RYAN delivered the opinion of the Court.

On October 28, 2015, Appellant was charged with one 

specification of rape in violation of Article 120, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 920. The 

charge alleges that Appellant raped DS when they were both 

cadets at the United States Coast Guard Academy in 1997. 

The parties agree that it was not until 2015, eighteen years 

after the incident, that the charge was received by the officer 

exercising summary court-martial jurisdiction, and Appellant was informed of the allegations against him. There is no 

DNA evidence in this case.

At a preliminary hearing pursuant to Article 32, UCMJ, 

10 U.S.C. § 832 (2012), the preliminary hearing officer determined that there was no probable cause to support the 

charge. Nonetheless, the convening authority referred the 

charge to trial by general court-martial, and Appellant was 

arraigned.
United States v. Mangahas, No. 17-0434/AF

Opinion of the Court

2

Appellant filed three motions to dismiss the charge and 

specification based on: the statute of limitations, improper 

referral, and a violation of the constitutional right to a 

speedy trial, respectively. The military judge denied Appellant’s motion to dismiss based on the nonconstitutional 

grounds of statute of limitations, but granted the motion to 

dismiss based on a violation of the constitutional right to a 

speedy trial. In doing so, the military judge dismissed the 

charge and specification with prejudice.1 He held that the 

Government’s inaction in excess of eighteen years prior to 

preferring charges violated the speedy trial guarantee of the 

Fifth Amendment’s Due Process Clause. 

The Government filed an interlocutory appeal contesting 

the military judge’s ruling pursuant to Article 62, UCMJ, 10 

U.S.C. § 862 (2012). The United States Air Force Court of 

Criminal Appeals (AFCCA) granted the Government’s appeal and vacated the military judge’s ruling. United States v. 

Mangahas, Misc. Dkt. No. 2016-10, 2017 CCA LEXIS 236, at 

*21, 2017 WL 1735161, at *7 (A.F. Ct. Crim. App. Apr. 4, 

2017) (unpublished). The AFCCA held that the military 

judge abused his discretion in finding that actual prejudice 

resulted from the lengthy pre-preferral delay, and that there 

was thus no due process violation. 2017 CCA LEXIS 236, at 

*10–11, 2017 WL 1735161, at *4.

This Court ordered a stay of the court-martial proceedings pending the completion of appellate review. We granted

Appellant’s petition to review the following issue:

Whether the lower court erred in finding no due 

process violation when the Government was inactive for over 17 years before investigating a claim of 

rape, violating [Appellant’s] Fifth Amendment 

Right to a Speedy Trial.

We held oral argument on the granted issue on October 11, 

2017. It is a long-established principle that federal courts 

will avoid a constitutional question if the issue presented in 

a case may be adjudicated on a nonconstitutional ground. 

United States v. Serianne, 69 M.J. 8, 10−11 (C.A.A.F. 2010) 

(citing United States v. Serianne, 68 M.J. 580, 584−85 (N-M.

 1 The military judge concluded that a “ruling” on the defense’s 

motion to dismiss was thus “unnecessary.”
United States v. Mangahas, No. 17-0434/AF

Opinion of the Court

3

Ct. Crim. App. Nov. 25, 1999)); see United States v. Simmons, 38 M.J. 376, 380 (C.M.A. 1993) (citing 

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 

346−48 (1936) (Brandeis, J., concurring)); Rosenberg v. 

Fleuti, 374 U.S. 449, 451 (1963). This is true even where the 

nonconstitutional ground, although raised at trial, is not 

raised by the parties on appeal. Simmons, 38 M.J. at

380; see also Peters v. Hobby, 349 U.S. 331, 338 (1955). In 

this case, the nonconstitutional ground was raised at the 

trial level and this issue was obvious and ripe on appeal. Accordingly, on October 25, 2017, we ordered additional briefing on the following specified issue: 

In light of Coker v. Georgia, 433 U.S. 584, 598 

(1977), and United States v. Hickson, 22 M.J. 146, 

154 n.10 (C.M.A. 1986), was the offense of rape of 

an adult woman, a violation of Article 120, UCMJ, 

10 U.S.C. § 920 (Supp. II 1997), a crime punishable 

by death within the meaning of Article 43, UCMJ, 

10 U.S.C. § 843 (1994).

Having considered those cases, we answer the specified 

issue in the negative. The prior decisions of United States v. 

Stebbins, 61 M.J. 366, 369 (C.A.A.F. 2005), and Willenbring 

v. Neurauter, 48 M.J. 152, 178, 180 (C.A.A.F. 1998), are 

overruled to the extent that they hold that rape was punishable by death at the time of the charged offense. Thus, the 

offense of rape is not exempt from the five-year statute of 

limitations.2 

 

2 While under federal law the statute of limitations for rape is 

five years, 18 U.S.C. § 3282, in 2006, Congress amended the statute of limitations in the military, so that at least for offenses 

committed on or after October 1, 2007, “[a] person charged with

. . . rape or sexual assault . . . may be tried and punished at any 

time without limitation.” 10 U.S.C. § 843 (2012) (as amended by 

National Defense Authorization Act for Fiscal Year 2006, 109 Pub. 

L. 163, §553, 119 Stat. 3136, 3264 (2006) (effective October 1, 

2007))). But see United States v. Grimes, 142 F.3d 1342, 1351 

(11th Cir. 1998). 
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4

I.

The applicable statute of limitations is a question of law, 

which we review de novo. United States v. Lopez de Victoria, 

66 M.J. 67, 73 (C.A.A.F. 2008) (citing United States v. Falk, 

50 M.J. 385, 390 (C.A.A.F. 1999)). An accused is subject to 

the statute of limitations in force at the time of the offense. 

Toussie v. United States, 397 U.S. 112, 115 (1970). Relevant 

to this case, the following iteration of Article 43, UCMJ, 10 

U.S.C. § 843 (1994), was in effect at the time of the alleged 

offense: 

(a) A person charged with absence without leave or 

missing movement in time of war, or with any offense punishable by death, may be tried and punished at any time without limitation.

(b)(1) Except as otherwise provided in this section (article), a person charged with an offense 

is not liable to be tried by court-martial if the 

offense was committed more than five years 

before the receipt of sworn charges and specifications by an officer exercising summary courtmartial jurisdiction over the command.

(Emphasis added.)

The statute of limitations is, therefore, five years except 

“as otherwise provided in this section (article).” Article 

43(b)(1), UCMJ. Put another way, the statute of limitations 

is five years unless a person is charged (1) with absence 

without leave or missing movement in time of war; or (2) 

“with any offense punishable by death.” Article 43(a), 

UCMJ. Those offenses have no statute of limitations. 

While relevant to the statute of limitations that will apply in a particular case, authorized punishments are in a 

separate part of the UCMJ, and are not themselves part of 

Article 43, UCMJ. Generally speaking, for most of the 

UCMJ punitive articles, the President establishes maximum 

authorized punishments in pt. IV of the Manual for Courts–

Martial, United States. United States v. Ronghi, 60 M.J. 83, 

84−85 (C.A.A.F. 2004); Article 56, UCMJ, 10 U.S.C. § 856 

(2012); Article 18, UCMJ, 10 U.S.C. § 818 (2012). Yet, some 

punitive articles themselves contain punishments. See, e.g., 

Article 85(c), 10 U.S.C. § 885(c) (2012) (“Any person found 
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5

guilty of desertion . . . shall be punished, if the offense is 

committed in time of war, by death.”).

In 1997, Article 120, UCMJ, provided that: 

(a) Any person subject to this chapter who commits 

an act of sexual intercourse, by force and without 

consent, is guilty of rape and shall be punished by 

death or such other punishment as a court-martial 

may direct.

Article 120, UCMJ, 10 U.S.C. § 920 (Supp. II 1997) (emphasis added). 

However, decades prior to 1997, the Supreme Court had 

decided Coker v. Georgia, 433 U.S. 584, 598 (1977). In Coker, 

the Supreme Court unequivocally held that the death penalty was a constitutionally impermissible penalty in violation 

of the cruel and unusual punishment clause of the Eighth 

Amendment for the crime of rape of an adult woman. Id. at 

592.

This Court is “generally not free to ‘digress’ from applicable Supreme Court precedent” on matters of constitutional 

law. United States v. Witham, 47 M.J. 297, 300 (C.A.A.F. 

1997). “Absent articulation of a legitimate military necessity 

or distinction, or a legislative or executive mandate to the 

contrary, this Court has a duty to follow Supreme Court 

precedent.” United States v. Cary, 62 M.J. 277, 280 (C.A.A.F. 

2006). No such articulation or mandate exists,3 and it is 

thus no surprise that, recognizing the import of Coker, our 

predecessor court noted that while the UCMJ authorized the 

death sentences for rape, in the absence of aggravating circumstances, such punishment cannot be constitutionally inflicted. United States v. Hickson, 22 M.J. 146, 154 n.10 

(C.M.A. 1986).4 

 3 The argument that the Supreme Court’s modified opinion in 

Kennedy v. Louisiana forges a constitutional distinction between 

the civilian and military spheres on the issue of the death penalty 

for rape is unfounded. 554 U.S. 407, 428 (2008), modified on denial 

of reh’g, 554 U.S. 945, 947 (2008). As the Court recognized, it was 

“a matter not presented here for our decision.” Id. at 948.

4 Article 55, UCMJ, also prohibits the punishment of any person subject to the UCMJ by cruel and unusual punishment. Article 55, UCMJ, 10 U.S.C. § 855 (2012). 
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II.

Statutes of limitations represent the legislative judgment

that “it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right to 

be free of stale claims in time comes to prevail over the right 

to prosecute them.’ ” United States v. Kubrick, 444 U.S. 111, 

117 (1979) (citation omitted). Thus, in the realm of criminal 

prosecution, “after a certain time, no quantum of evidence is 

sufficient to convict.” Stonger v. California, 539 U.S. 607, 

615 (2003) (citation omitted). An unlimited statute of limitations for “any offense punishable by death,” reflects Congress’s intent that the passage of time should not bar the 

prosecution of the gravest offenses. See generally 5 Wayne R. 

LaFave et al., Criminal Procedure§ 18.5(a) (4th ed. 2015).

Nonetheless, the Supreme Court has indicated that criminal 

statutes of limitations are to be “liberally interpreted in favor of repose.” United States v. Marion, 404 U.S. 307, 322

n.14 (1971) (citing United States v. Habig, 390 U.S. 222, 227 

(1968)).

It is in this context that we examine our decision in 

Willenbring, which held, in relevant part, that rape is an “offense punishable by death” for purposes of exempting it from 

the five-year statute of limitations of Article 43(b)(1) even if 

it could never be punished by death. 48 M.J. at 180. Courts

do not lightly overrule precedent, see generally Randy J. 

Kozel, Settled Versus Right: A Theory of Precedent (2017), 

but “stare decisis is a principle of decision making, not a 

rule, and need not be applied when the precedent at issue is

...‘badly reasoned.’ ” United States v. Quick, 74 M.J. 332, 336 

(C.A.A.F. 2015) (citation omitted). The discrete portion of 

Willenbring related to Article 43, UCMJ, in the context of 

rape is such a precedent. 

First, “punishable” is not a term of art and has an ordinary meaning. United States v. Schloff, 74 M.J. 312, 313 

(C.A.A.F. 2015) (“In the absence of any specific statutory definition, we look to the ordinary meaning of the word.”). In its 

plainest terms, “punishable” means “subject to a punishment,” or “to inflict punishment.” Black’s Law Dictionary

1428 (10th ed. 2014); Webster’s Ninth New Collegiate Dictionary 955 (9th ed. 1991). Where, as in Willenbring, there is 

no set of circumstances under which the death penalty could 
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7

constitutionally be imposed for the rape of an adult woman, 

since that offense is simply not “punishable by death” for 

purposes of the exception to the ordinary five-year statute of 

limitations. Willenbring gave short shrift to this highly salient point.

Second, and relatedly, despite the admonition that criminal statutes of limitations are to be “liberally interpreted in 

favor of repose,” Marion, 404 U.S. at 322 n.14, Willenbring

instead effectively expanded the statute of limitations to include an offense that was not, in fact, punishable by death. 

This, in turn, was caused in part by a failure to account for 

the distinction between “punishable,” which is what the 

statute of limitations requires, and “authorized,” which 

serves another purpose, in another statute. 

Third, despite the duty to follow Supreme Court precedent, the Willenbring opinion engaged in no analysis of 

Coker, 433 U.S. 584. This failure to incorporate and analyze 

applicable Supreme Court precedent further undermines the 

precedential value of Willenbring.

Finally, Willenbring placed undue reliance on three federal civilian cases, none of which are either binding or analogous to the issue in Willenbring: United States v. Manning, 

56 F.3d 1188, 1196 (9th Cir. 1995); United States v. Watson, 

496 F.2d 1125 (4th Cir. 1973); and Coon v. United States, 

411 F.2d 422, 424 (8th Cir. 1969). In Willenbring, as in the 

instant case, the death penalty was completely unavailable

on constitutional grounds. 48 M.J. at 180. The Coker decision had been released approximately ten years prior to the 

commission of the charged offenses in Willenbring. Id. at 

155. In contrast, in Manning, Watson, and Coon, the death 

penalty was, in fact, at least a potentially available punishment for the respective charges at the time the offenses were 

committed.

In Manning, the appellant was convicted of murder by 

sending a bomb in the mail. 56 F.3d at 1193. In Watson, the 

appellant was convicted of first-degree murder. 496 F.2d at 

1125. In Manning and Watson, the death penalty was an 

available punishment for the charged offenses, and the decisions that analyzed the relevant statute of limitations reflected that point. In those cases the government did not 
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8

seek the death penalty, but the offenses were punishable by 

death. 

In Coon, after a convoluted appellate history, the court 

ultimately denied the appellant relief on statute of limitations based on two different grounds. First, the court rejected the argument that the offense was not punishable by 

death because the government did not seek the death penalty. 411 F.2d at 424 (citing Coon v. United States, 360 F.2d 

550, 553 (8th Cir. 1966)). The court held that courts must 

look to the charge in the indictment and not the result of 

trial in determining whether an offense is punishable by 

death. Id. Second, the court rejected the notion that a later

determination that imposition of the death penalty was constitutionally infirm for the charged offense, United States v. 

Jackson, 390 U.S. 570 (1968) and Pope v. United States, 392 

U.S. 651 (1968), was relevant for determining the statute of 

limitations that applied at the time of the offense. 411 F.2d at 

425. 

In the cases Willenbring relied on, the death penalty was 

a substantively available sentence for the offense at the time 

of the offense. Here, as in Willenbring, 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. To hold otherwise, as we did in Willenbring, creates a grave “risk of undermining public confidence in the law.” Quick, 74 M.J. at 

336.

III.

The statute of limitations in this case is five years. Given 

that the charge and specification were received by the officer 

exercising summary court-martial jurisdiction eighteen 

years after the alleged offense, the decision of the United 

States Air Force Court of Criminal Appeals is reversed. The 

charge and specification are dismissed.