This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________
UNITED STATES Appellee

v.
Edzel D. Mangahas, L ieutenant Colonel United States Air Force , Appellant

No. 17

- 0434 Crim. App. No. 2016

- 10

Argued October 11, 2017

— February 6, 2018

Military Judge s : 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 A rticle 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 Appe llant was informed of the allegations against him . There is no
DNA evidence in this case

. At a prel iminary hearing pursuant to Article 32, UCMJ, 10 U.S.C. § 832 (2012), the p reliminary h earing o fficer d etermined that there was no probable cause to support the charge. Nonetheless, t he convening authority referred the charge to trial by general court

- mart ial, and Appellant was arraigned.United S tates 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 Appe llant’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
char ge 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 app eal 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 a ppeal and vacated the military judge’s ruling

. United States v. Mangaha s , 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
result ed 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 procee dings 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 ina ctive 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 State s 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 S tates v. Mangahas , No. 17

- 0434/AF Opinion of the Court

3 Ct. Crim. App. Nov. 25, 1999) ) ; s ee United States v. Si mmons , 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 noncons titutional ground was raised at the trial level and this issue was obvious and ripe on appeal. A ccordingly, on October 25, 2017, we ordered additional brie fing on the following specified issue:

In light of Coker v. Georgia , 433 U.S. 584, 598 (1977), and U nited 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

overru led to the extent that they hold that rape was punis hable by death at the time of the charged offense . Thus, the
offense of rape is not exempt from the five

- year statut e of
limitations

. 2

2 While under federal law the statute of limitations for rape is five yea rs, 18 U.S.C. § 3282, in 2006, Congress amended the sta tute 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 limit ation.” 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).United S tates v. Mangahas , No. 17

- 0434/AF Opinion of the Court

4 I.

The applicable statute of limitation s 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 o ffense punishable by death , may be tried and pu nished at any time without limitation.
(b)(1) Except as otherwise provided in thi s se ction (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 court

martial jurisdi ction over the command.

( E mphasis 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 ch arged (1) with absence without leave or missing movement in time of war; or (2) “with any offense punishable by death.” Art icle 43(a),
UCMJ. Those offense s have no statute of limitations.

While relevant to the statute of limitations that will a pply 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. § 8 8 5( c) (2012) (“Any person foundUnited S tates v. Mangahas , No. 17

- 0434/AF Opinion of the Court

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 ) (emph asis 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 pena lty was a constitutionally impermissible penalty in vi olation of the cruel and unusual punishment clause of the Eighth
Amen dment for the crime of rape of an adult woman. Id. at
592.

This Court is “generally not free to ‘digress’ from appl icable 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 pred e cessor court noted that while the UCMJ authorized the death sentences for rape, in the absence of ag gravating ci rcumstances, such punishment cannot be constitutionally i nflicted. 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 pe rson subject to the UCMJ by cruel and unusual punishment. Art icle 55, UCMJ, 10 U.S.C. § 855 (2012).United S tates v. Mangahas , No. 17

- 0434/AF Opinion of the Court

6 II.

Statutes of limitation s r epresent the legislative judgment that “it is unjust to fail to put the adversary on notice to d efend within a specified peri od of time and that ‘the right to be free of stale claims in time comes to prevail ove r 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 limit ations for “any offense punishable by death,” reflects Co ngress’ s intent that the passage of time should not bar the prosecution of the gravest offenses. See generally 5 Wayne R.
LaFave e t a l., Criminal Procedure § 18.5(a) (4th ed. 201 5 ). Nonetheless, t he Supreme Court has indicated that criminal
statutes of li mitations are to be “liberally interpreted in favor of repose. ” United States v. Marion , 404 U.S. 307, 32 2 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

, tha t rape is an “o ffense punishable by death” for pur poses 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. Court s do not lightly over rule 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 ord inary meaning. United States v. Schloff , 74 M.J. 312, 313 (C.A.A.F. 2015) (“In the absence of any specific statutory de finition, we look to the ordinary meaning of the word.”). In its plainest terms, “punishable” means “ subject to a punis hment ,” or “ to inflict punishment .” Black’s Law Dictionary

1428 (10 th e d. 2014) ; Webster’s Ninth New Collegiate Di ctionary 955 ( 9th ed. 1991). Where, as in Willenbring

, there is

no set of circumstances under which the death penalty couldUnited S tates v. Mangahas , No. 17

- 0434/AF Opinion of the Court

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 sal ient point.

Second, and relatedly, despite the admonition that cri minal s tatutes of limitation s are to be “ liberally interpreted in favor of repose, ” Marion , 404 U.S. at 32 2 n.14

, Willenbring
instead effectively expanded the statute of limitations to i nclude an offense that was not, in fact, punishable by death. This, in turn, was caused in part by a failure t o account for the distinction between “punishable,” which is what the
statute of limitation s requires, and “authorized,” which serves another purpose, in another statute.

Third, despite the duty to follow Supreme Court prec edent, 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 relianc e on three fe deral civilian cases, none of which are either binding or ana logous 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

, 4 11 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 dec ision 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

, a t least a potentially available punis hment for the respec tive 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 punishmen t for the charged offenses

, and the dec isions that analyzed the relevant statute of limitations r eflected that point. In those cases the government did notUnited S tates v. Mangahas , No. 17

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8 seek the death penalty, but the offenses were punishab le by
death.

In Coon , after a convoluted appellate history, the court ultimately denied the appellant relief on statute of limit ations based on two different grounds. First, the c ourt rejec ted the argument that the offense was not punishable by death because the government did not seek the death pena lty. 411 F.2d at 424 (citing Coon v. United States

, 360 F.2d

550

, 553 (8th Cir. 1966 ) ) . The c ourt held that courts must look to the charge in the indic tment and not the result of trial in determining whether an offense is punishable by
death. Id

. Second, the c o urt rejected the notion that a later
determination that imposition of the death penalty was co nstitutionally infirm for the charged offense, Unite d 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

.
I n 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 w hat potent iality 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 punish able by death for purposes of Article 43, UCMJ

. To hold ot herwise, a s we did in Willenbring , creates a grave “risk of u ndermini ng pub lic confidence in the law.” Quick , 74 M.J. at

336.

II I

. The statute of limitation s 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 . T he

c harge and s pecification are dismissed.