    UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                              Before
                                  MAHER, SULLIVAN, and HOLDEN
                                     Appellate Military Judges

                                UNITED STATES, Appellant
                                              v.
                            Sergeant ERIC LOPEZ de VICTORIA
                                United States Army, Appellee

                                       ARMY MISC 20061248

                     United States Army Armor Center and Fort Knox
                           Richard J. Anderson, Military Judge
                    Colonel Lisa Anderson-Lloyd, Staff Judge Advocate

For Appellee: Lieutenant Colonel Steven C. Henricks, JA; Major Fansu Ku, JA (on
brief).

For Appellant: Colonel John W. Miller II, JA; Lieutenant Colonel Michele B.
Shields, JA; Captain Larry W. Downend, JA; Captain James P. Leary, JA (on brief).

                                               7 May 2007
                   --------------------------------------------------------------------------
                       OPINION OF THE COURT AND ACTION ON APPEAL
                          BY THE UNITED STATES FILED PURSUANT TO
                      ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                   --------------------------------------------------------------------------

MAHER, Senior Judge:

       The government’s timely appeal under Article 62, Uniform Code of Military
Justice, 10 U.S.C. § 862 [hereinafter UCMJ], is hereby granted. The decision of the
military judge setting aside Specifications 1, 2, and 4 of Charge I and the sentence is
vacated. We hold the November 2003 Congressional Amendment [hereinafter 2003
Amendment] to Article 43, UCMJ [hereinafter Article 43] 1 extending the statute of

1
    Article 43, Statute of Limitations, provides in relevant part:

                       (b)(1) [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 jurisdiction over the command.

                                                                                      (continued . . .)
LOPEZ de VICTORIA – ARMY 20061248

limitations from five years to the child victim’s twenty-fifth birthday applies
retroactively to offenses committed before Congress enacted the 2003 Amendment,
so long as the previous limitations period has not already expired. 2

       A panel of officer and enlisted members sitting as a general court-martial
convicted appellee, contrary to his pleas, of making a false official statement,
indecent acts with a child (two specifications), and indecent liberties with a child, in
violation of Articles 107 and 134, UCMJ, 10 U.S.C. §§ 907 and 934. The panel
sentenced appellee to a dishonorable discharge, confinement for four years,
forfeiture of all pay and allowances, and reduction to Private E1.

       At a post-trial Article 39(a) hearing, the military judge ruled the statute of
limitations barred convicting appellee of indecent acts with a child and indecent
liberties with a child because the 2003 Amendment extending the statute of limita-
tions did not apply retroactively to offenses committed before its enactment. The
military judge set aside those findings and the sentence and ordered further
sentencing proceedings for the remaining findings of guilty to false official
statement. The government filed a timely appeal to our court under Article 62,
UCMJ.

       This court must now decide whether, when Congress amended Article 43 to
extend the statute of limitations for child abuse offenses, it also intended to extend
the statute of limitations for those crimes that had already been committed against
children, but whose statute of limitations had not yet expired under the previous
limitation period.



(. . . continued)

                     (2)(A) A person charged with committing a child
              abuse offense against a child is liable to be tried by court-
              martial if the sworn charges and specifications are received
              before the child attains the age of 25 years by an officer
              exercising summary court-martial jurisdiction with respect
              to that person.
2
 While our superior court has characterized correctly applying Article 43 as a “legal
bramble,” the issue of retroactive application of an unexpired statute of limitations
appears to be one of first impression, and we now “engage in the mental gymnastics
necessary to untangle” it. United States v. Moore, 32 M.J. 170, 171 n.1 (C.M.A.
1991).


                                            2
LOPEZ de VICTORIA – ARMY 20061248

       We hold that Congress did have such intent. Congress “makes no contract
with criminals at the time of the passage of acts of limitations that they shall have
immunity from punishment if not prosecuted within the statutory period.” State v.
Skakel, 888 A. 2d 985 (Conn.), cert. denied, 2006 U.S. Lexis 8617 (2006) (internal
citations and quotations omitted).

                        Factual and Procedural Background

       The relevant facts are undisputed. Appellee sexually molested his then six-
year-old stepdaughter on divers occasions between November 1998 and June 1999.
When the offenses came to light more than seven years later, the government
preferred charges.

       During appellee’s trial in December 2006, the military judge, sua sponte,
questioned whether the statute of limitations barred the government from
prosecuting appellee. Under the five-year statute of limitations in Article 43, the
deadline to prosecute appellee’s offenses would have expired on 25 November 2003
unless extended by the 2003 Amendment. 3

       The military judge initially ruled the government could prosecute appellee
because Congress amended Article 43 to extend the statute of limitations for sexual
offenses committed against children as of 24 November 2003. 4 Congress extended
the previous five-year statute of limitations for the charged offenses just before it



3
  The government charged appellee with specifications of sexual misconduct
occurring between 24 November 1998 and 1 June 1999. The military judge amended
the charge sheet to reflect a start date of 25 November 1998 for these acts of sexual
abuse. The military judge correctly recognized that the five-year statute of
limitations barred prosecuting appellee for any of the offenses he committed on 24
November 1998 (or earlier), regardless of whether Congress extended the statute of
limitations, since such prosecution would violate the Ex Post Facto Clause. See
infra.
4
  The extension requires the appropriate summary court-martial convening authority
receive the charges before the child-victim attains the age of twenty-five. In this
case, the victim, born on 30 October 1992, was thirteen years old when the summary
court-martial convening authority received the charges. In fact, at the time of trial,
the government had until 2017 to prosecute appellee. National Defense
Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, 117 Stat. 1392
(2003)[hereinafter FY 04 NDAA].


                                           3
LOPEZ de VICTORIA – ARMY 20061248

expired for appellee’s offenses on 25 November 2003. Nothing, therefore, barred
the prosecution against appellee.

       The military judge also addressed whether the extension of the statute of
limitations applied retroactively or prospectively since a lack of retroactive
application to offenses committed before 24 November 2003 would bar appellee’s
prosecution. Since the public law amending the extension of the statute of
limitations was silent on this matter, the military judge ruled it applied retroactively
and the trial proceeded through findings and sentence.

       After sentencing, at the post-trial Article 39(a) hearing, the military judge sua
sponte reconsidered his prior ruling. He concluded, as “a matter of fact and law”,
Congress was silent on the retroactive application of the 2003 Amendment. The
military judge then ruled in the absence of “such a clear and unequivocal declaration
of [retroactive applicability] . . . the amendment . . . can only be applied
prospectively.” Without retroactive application, the military judge set aside the
three specifications related to the sexual misconduct with a child and the sentence.

                                      Discussion

                                 I. Standard of Review

             When ruling on government interlocutory appeals made
             pursuant to Article 62(b), UCMJ, our court “may act only
             with respect to matters of law.” We may not make
             additional findings of fact; rather, “[o]n questions of fact,
             [our] court is limited to determining whether the military
             judge’s findings are clearly erroneous or unsupported by
             the record. If the findings are incomplete or ambiguous,
             the ‘appropriate remedy . . . is a remand for clarification
             or additional findings.” United States v. Lincoln, 42 M.J.
             315, 320 (C.A.A.F. 1995) (quoting United States v. Kosek,
             41 M.J. 60, 64 (C.M.A. 1994)). Moreover, we are “bound
             by the military judge’s factual determinations unless they
             are unsupported by the record or clearly erroneous.”
             United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004).
             This court may not “find its own facts or substitute its
             own interpretation of the facts.” United States v. Cossio,
             64 M.J. 254, 256 (C.A.A.F. 2007) (citing United States v.
             Mizgala, 61 M.J. 122, 127 (C.A.A.F. 2005)). However,
             we review questions of law de novo. Kosek, 41 M.J. at 63;
             United States v. Rittenhouse, 62 M.J. 509, 511 (Army Ct.
             Crim. App. 2005).

                                            4
LOPEZ de VICTORIA – ARMY 20061248

United States v. Jones, 64 M.J. 596, 601 (Army Ct. Crim. App. 2007).

       Questions concerning statutes of limitations are questions of law subject to de
novo review. United States v. McElhaney, 54 M.J. 120, 125 (C.A.A.F. 2000) (citing
1 Steven Childress & Martha Davis, Federal Standards of Review § 2.13 (3d ed.
1999)). See also United States v. Viera, 64 M.J. 524, 528 (A.F. Ct. Crim. App.
2007); United States v. Jeffries, 405 F.3d. 682, 684 (8th Cir.), cert. denied, 546 U.S.
1007 (2005). Although the military judge in this case characterized his conclusion
concerning Congressional intent as findings of fact and law, our superior court has
held that “[i]nterpretation[s] of a statute and its legislative history are questions of
law that we review de novo.” United States v. Reeves, 62 M.J. 88, 91 (C.A.A.F.
2005) (citing United States v. Falk, 50 M.J. 385, 390 (C.A.A.F. 1999)) (emphasis
added). “Military judges must be careful to restrict findings of fact to things,
events, deeds, or circumstances that ‘actually exist’ as distinguished from ‘legal
effect, consequence, or interpretation.’” United States v. Cossio, 64 M.J. 254, 357
(C.A.A.F. 2007) (citing Black’s Law Dictionary 629 (8th ed. 2004) (defining
“fact”)).

                               II. Statutes of Limitations

      Congress enacted separate criminal statutes of limitation for federal practice
and military practice. See McElhaney, 54 M.J. at 124. The two interrelate, however,
and both are relevant to our analysis in this case.

                                   A. Military Practice

       Congress enacted the UCMJ in 1950, and Article 43 allowed for a three-year
statute of limitation in time of peace for violations of Articles 119 through 132,
UCMJ 5 and two-year limitations for violations of Article 133 and 134, UCMJ. 6
Congress, however, also included a “savings clause” to preserve offenses the
government could have prosecuted under the Articles of War (or Articles for the
Government of the Navy) which preceded enactment of the UCMJ. Section 4 of the
Act of 5 May 1950 provided:

5
    UCMJ art. 43(b)(1), Pub. L. No. 81-506.
6
  In time of war, Article 43(c) provides for an extension of the statute of limitations
for certain offenses. When Congress enacted the UCMJ, it chose to generally follow
the statute of limitations found under Article 39, Articles of War, rather than the
existing federal statutes of limitations.



                                              5
LOPEZ de VICTORIA – ARMY 20061248

             ‘All offenses committed . . . prior to the effective date of
             this Act under any law embraced in or modified, changed
             or repealed by this Act may be prosecuted, punished, and
             enforced, and action thereon may be completed, in the
             same manner and with the same effect as if this Act had
             not been passed.’

             It is clear that the executive order implemented the
             savings clause of the statute by providing that acts or
             omissions occurring before 31 May 1951 which amounted
             to a violation of the Articles of War should be charged as
             such and not as violations of the Uniform Code [of
             Military Justice].

United States v. Downard, 1 C.M.R. 405, 413 (C.M.R. 1951)(emphasis added);
United States v. Welch, 1 C.M.R. 258, 263 (A.B.R. 1951).

       Thus, from its inception, Congress allowed for a mechanism in the UCMJ to
save earlier offenses. Article 43 remained unchanged until 1986, shortly after the
Army began prosecuting fraud cases involving special operations funds. 7 Congress
then amended the statute of limitations for UCMJ violations to match the general
five-year statute of limitations in federal criminal practice for most offenses. 8 When
Congress extended the limitation to five years, it expressly provided a prospective
limitation by stating “the amendments shall apply to an offense committed on or




7
 See United States v. Longhofer, 29 M.J. 22 (C.M.A. 1989), United States v. Byard,
29 M.J. 803 (A.C.M.R. 1989), United States v. Duncan, 34 M.J. 1232, 1235
(A.C.M.R. 1992).
8
 National Defense Authorization Act for Fiscal Year 1987, Pub. L. No. 99-561, §
805(a), 100 Stat. 3816, 3908 (1986)[hereinafter FY 07 NDAA].




                                           6
LOPEZ de VICTORIA – ARMY 20061248

after the date of the enactment of this Act." 9 Congress described its change to the
statute of limitations as a “revision” and not an “extension.” 10

                                    B. Federal Practice

       In federal criminal law, since 1948, “the general statute of limitations for
noncapital crimes [has been] five years, 18 U.S.C. § 3282.” United States v.
Jeffries, 405 F.3d at 683-684. Four years after first amending Article 43, Congress
also extended the statute of limitations for federal child abuse offenses until the
child victim reached the age of twenty-five, when it enacted the Victims of Child
Abuse Act of 1990 (VCAA). 11 In a section titled “Extension of Child Statute of
Limitations,” Congress provided: “No statute of limitation that would otherwise
preclude prosecution for an offense involving the sexual or physical abuse of a child
under the age of 18 years shall preclude such prosecution before the child reaches
the age of 25 years.” 18 U.S.C § 3509(k). In 1994, Congress recodified this
language in 18 U.S.C. § 3283. 12 “In 2003, Congress again amended the statute to
extend the statute of limitations so that the government could continue to prosecute
suspected child abusers at any time ‘during the life of the child.’” United States v.
Chief, 438 F. 3d. 920, 922 (9th Cir. 2006).

                               C. Effect on Military Practice

       In United States v. McElhaney, our superior court held the federal statute of
limitations for child abuse offenses did not apply to servicemembers. 54 M.J. at
126. In McElhaney, the Court of Appeals for the Armed Forces (CAAF) ruled the
Air Force Court of Criminal Appeals erred when it applied the statute of limitations

9
 FY 07 NDAA. Consequently, service courts set aside convictions where members
of the armed forces committed offenses before Congress amended Article 43 in 1986
and if the statute of limitations had run by the time the summary court-martial
convening authority received the charges. See United States v. Shinault, 28 M.J. 666
(N.M.C.M.R. 1989); United States v. Jones, 26 M.J. 1009 (A.C.M.R. 1988); United
States v. Lopez, 1992 CMR LEXIS 352 (A.F.C.M.R. Mar. 30, 1992).
10
     See id. § 805(c).
11
  18 USC § 3509(k), See Crime Control Act of 1990, 101 Pub. L. No. 647; 104 Stat.
4789 (1990). See also United States v. Jeffries, 405 F. 3d. at 683.
12
     Pub. L. No. 103-322, § 330018 (1994); See Jeffries, 405 F. 3d. at 683–84.



                                             7
LOPEZ de VICTORIA – ARMY 20061248

of 18 U.S.C. § 3283 instead of the five-year statute of limitations of Article 43. The
CAAF noted “Congress did not expressly address the relationship of this provision
to the UCMJ in either the language of the VCAA or its legislative history.” 54 M.J.
at 125. The CAAF analyzed whether the statute of limitations of the VCAA applied
to the UCMJ “by reading this section in context—as one section of § 3509” and
concluded Congress intended to apply the provisions of § 3509 to “federal district
courts, not courts-martial.” Id. Consequently, the CAAF found the appellant’s
offenses time barred and reversed his convictions. Id. at 134.

       After the CAAF’s decision in McElhaney, Senator Nelson (D, Florida) 13
introduced legislation in 2003 to ensure military practice mirrored federal criminal
practice. 14 On 23 November 2003, Congress incorporated Senator Nelson’s language
into the Fiscal Year 2004 National Defense Authorization Act [hereinafter FY 04
NDAA]. Unlike its 1986 amendment, Congress entitled the 2003 Amendment to
Article 43 an “extended limitation period,” 15 as opposed to a “revision.”

13
   “[S]erious convictions were overturned by the [CAAF] which determined that the
shorter period of limitations for the statute of limitations provided by the UCMJ
applied to the case instead of the extended prosecution period provided by the VCAA.
. . . My bill clarifies that the VCAA’s statute of limitations applies to courts-martial
whenever a case arises involving the sexual or physical abuse of a child.” 108 Cong.
Rec. S2053 (2003) (Statement of Sen. Nelson).
14
     Id. Senate Bill 326 stated:

                Section 1. EXTENDED LIMITATION PERIOD FOR
                PROSECUTION OF CHILD ABUSE CASES IN COURTS-
                MARTIAL.
                Section 843(b) of Title 10, United States Code (Article 43
                of the Uniform Code of Military Justice), is amended by
                adding at the end the following new paragraph:

                    “(3) Section 3283 of title 18, relating to an extension of
                a period of limitation for prosecution of an offense
                involving sexual or physical abuse of a child under the age
                of 18 years, shall apply to liability of a person for trial for
                such an offense by a court-martial and liability of a person
                for punishment for such an offense under section 815 of
                this title (article 15).
15
     FY04 NDAA, S. Res. 1050, Sec. 551, 108th Cong. (2003) (enacted), stating:

                                                                       (continued . . .)
                                               8
LOPEZ de VICTORIA – ARMY 20061248

                  D. Federal Law and Military Law Continues to Expand

       Meanwhile, Congress continued extending the statute of limitations in federal
law. In April 2003, Congress extended the statute of limitations in 18 U.S.C. § 3283
for the life of the child-victim or five years after the offense, whichever is longer. 16
The Senate Armed Services Committee (SASC) described the provision as an
extension and replacement for the five-year limit. 17 Also, in 2006, Congress inserted
“or for ten years after the offense, whichever is longer” in place of the “five years
after the offense, whichever is longer.” 18 Similarly, in 2006, Congress further
amended Article 43 for child sex abuse crimes for the life of the child or five years,
whichever was greater.

                                     III. Ex Post Facto

        “The Constitution's two Ex Post Facto Clauses prohibit the Federal
Government and the States from enacting laws with certain retroactive effects. See
Art. I, § 9, cl. 3 (Federal Government).” Stogner v. California, 539 U.S. 607, 610
(U.S. 2003). In Stogner, the Supreme Court held that the Ex Post Facto Clause of
the Constitution prohibited the prosecution of a child sex abuse offense when the
state enactment amending the statute of limitations period “permitted resurrection of
an otherwise time-barred criminal prosecution and . . . had been enacted after the
pre-existing limitations periods for the prosecution in question had expired.” 19



(. . . continued)
EXTENDED LIMITATION PERIOD FOR PROSECUTION OF CHILD ABUSE
CASES IN COURTS-MARTIAL.
16
  See Pub. L. No. 108-21, § 202, 117 Stat. 650, 660 (2003); See also Jeffries, 405 F.
3d. at 684.
17
 FY04 NDAA, S.Res. 1050, Sec. 551, 108th Cong. (2003) (enacted), stating:
EXTENDED LIMITATION PERIOD FOR PROSECUTION OF CHILD ABUSE
CASES IN COURTS-MARTIAL.
18
     Jan. 5, 2006, P.L. 109-162, Title XI, Subtitle C, § 1182(c), 119 Stat. 3126.
19
  The decision in Stogner follows a line of cases holding it impermissibly oppressive
and unfair when a “new law inflicts a punishment upon a person not then subject to
that punishment, to any degree.” Id. at 613–614.



                                              9
LOPEZ de VICTORIA – ARMY 20061248

       In the instant case, the parties concede and the military judge correctly ruled
the Ex Post Facto Clause of the Constitution did not bar the government from
prosecuting appellee. Preferring charges against appellee did not resurrect any time-
barred offenses. On 23 November 2003, Congress enacted the legislation expanding
the statute of limitations for child abuse offenses from five years until the child
victim’s twenty-fifth birthday, with an effective date of 24 November 2003. 20 The
military judge, seemingly concerned about resurrecting a time-barred offense in
appellee’s case, amended the sexual abuse offenses to allege misconduct he
committed no earlier than 25 November 1998. Also, appellee’s stepdaughter was
thirteen years old when the summary court-martial convening authority received the
charges. We conclude, as did the military judge, that the Ex Post Facto Clause does
not bar prosecution of any of the offenses. 21

                     IV. Prospective or Retroactive Application

       With this background, we now begin to find our way through the legal
bramble: Does the 2003 Amendment apply retroactively to sexual offenses
servicemembers committed against children on or before the amendment’s effective
date of 24 November 2003? Appellee contends and the military judge held if
Congress fails to make “clear and unequivocal” whether it intends for a statute of
limitations to apply retroactively, then the statute of limitations will apply only

20
  National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, 117
Stat. 1392 (2003) [hereinafter “FY 04 NDAA”].
21
  Judge Learned Hand provided the “classic explanation” for why the legislature
cannot revive a prosecution once the statute of limitations for it expires:

             Certainly it is one thing to revive a prosecution already
             dead, and another to give it a longer lease of life. The
             question turns on how much violence is done to our
             instinctive feelings of justice and fair play. For the state to
             assure a man that he has became safe from its pursuit, and
             thereafter to withdraw its assurance, seems to most of us
             unfair and dishonest. But, while the chase is on, it does not
             shock us to have it extended beyond the time first set, or, if
             it does, the stake [sic] forgives it.

Hodgson, 740 P. 2d. at 851 (citing Falter v. United States, 23 F. 2d. 420, 425–26 (2d
Cir.), cert. denied, 277 U.S. 590 (1928)).



                                           10
LOPEZ de VICTORIA – ARMY 20061248

prospectively to offenses committed after the statute is extended. Although some
authority supports appellee’s position, the weight of authority is to the contrary. 22
One approach suggests:

             There is nothing 'retroactive' about the application of an
             extension of a statute of limitations, so long as the
             original statutory period has not yet expired. Such
             application does not offend the prohibition in Article 1, §
             9, Clause 3 of the Constitution against ex post facto laws.
             United States v. Powers, 1939, 307 U.S. 214, 59 S.Ct. 805,
             83 L.Ed. 1245, rehearing denied, 1939, 308 U.S. 631, 60
             S.Ct. 66, 84 L.Ed. 526; United States v. Ganaposki,
             D.C.M.D.Pa.1947, 72 F.Supp. 982.



22
   For instance, when the United States Supreme Court addressed the statute of
limitations for failing to register for the draft, it held “[c]riminal statutes of
limitations . . . are to be liberally interpreted in favor of repose.” Toussie v. United
States, 397 U.S. 112, 115 (1970). In Toussie, the Supreme Court addressed whether a
failure to register for the draft constituted a continuing offense. It concluded
defendants complete the offense five days after reaching their eighteenth birthdays.
Id. at 123-124. In Toussie, however, the Supreme Court decided whether Congress
intended for the offense to be a continuing one, not whether legislation had enlarged
the statute of limitations. Id. at 119-120. Congress superseded Toussie by enacting
legislation extending the statute of limitations to within five years of one’s twenty-
sixth birthday or within five years of registering, whichever occurred first. Congress,
however, failed to indicate whether the change was to be made prospectively or
retroactively. In United States v. Richardson, 512 F.2d 105 (3d Cir. 1975), the Court
of Appeals noted that while Congress had intended to reverse Toussie, the statute was
silent about whether the extended statute of limitations applied to offenses occurring
before the statute's enactment. Absent a clear showing of intent, the Court of Appeals
for the Third Circuit applied the new statute of limitations only prospectively for
offenses occurring after the date of enactment. Id. at 106. In other instances,
Congress has expressly indicated a retroactive intent on a criminal statute. For
instance, when it amended the statute of limitations for financial offenses in 10
U.S.C. § 3293, Congress used clear and unequivocal language: "The amendments
made by subsection (a) [amending this section] shall apply to any offense committed
before the date of the enactment of this section, if the statute of limitations applicable
to that offense had not run as of such date." In the instant case, there is no such clear
language.



                                            11
LOPEZ de VICTORIA – ARMY 20061248

United States v. Kurzenknabe, 136 F. Supp. 17, 23 (D.N.J. 1955). 23

       State court cases agree with this holding. In State v. Skakel, a case with
similar issues to the case at bar, the Supreme Court of Connecticut cited to numerous
cases where other courts have also held statutes of limitations enlargements allowing
prosecution for offenses with unexpired time limitations do not amount to
retroactive application. 888 A.2d at 1022 n. 46 (see cases cited therein).

                        V. Strict Versus Liberal Construction

       Appellee urges us to apply traditional rules of strict statutory construction in
the absence of clear legislative intent. We are cognizant that courts traditionally
construe criminal laws strictly because individuals are entitled to notice as to what
the law forbids, and we entrust legislatures with defining criminal activity. Strictly
construing extensions of criminal statutes of limitations, however, amounts to a
mechanical and unwarranted application of the principle. Such strict construction in
this case neither advances the purpose of providing clear notice as to what the law
forbids nor does it in any way define substantive criminal misconduct. When
appellee molested his stepdaughter, he had notice the law proscribed his acts.
Extending the unexpired statute of limitations period in no way alters appellee’s
knowledge that his conduct was illegal when he did it.

       Similarly, extending the unexpired limitation period does not substantively
change the nature of the criminal acts which the law already prohibited. The
extension in no way usurps Congress’ legislative responsibility to define criminal
activity. Courts should not apply strict construction when it frustrates an apparent
legislative purpose. The preeminent commentary on this area of law provides:

             A strict or liberal interpretation may depend upon a wide
             variety of factors or combination of them. Broadly
             speaking, whether a statute is construed liberally or
             strictly depends upon (1) its relationship to former law,
             (2) the way it affects persons and rights, (3) how much
             leeway the language of the statute affords, and (4) the
             purposes and objects of the statute. For example, where
             the statute has been passed to meet the perceived need of
             people in remedying certain evils, a liberal construction is
             necessary to carry out legislative intent.

23
  While we understand the rationale for this approach, we nonetheless hold that the
2003 Amendment applies retroactively, as we explain below.


                                           12
LOPEZ de VICTORIA – ARMY 20061248

3 J. Sutherland, Statutes and Statutory Construction (6th Ed. Singer
2001)[hereinafter Sutherland] § 58:1, pp. 85-86 (emphasis added). Sutherland
further states:

               The rule of strict construction is not the only factor which
               influences the interpretation of [criminal] laws. Instead,
               the rule is merely one among various aids which may be
               useful in determining the meaning of penal laws. This has
               been recognized time and again by the decisions that the
               intent of the legislature, or the meaning of the statute must
               govern and that a strict construction should not be
               permitted to defeat the policy and purposes of the statute.

Id., § 59:6, pp. 159-61.

        It is also less clear that rules of strict construction must apply to changes in
statutes of limitations. Some courts have labeled amendments to these limitations
procedural and applied them retroactively. Such an approach follows the statutory
rule of construction that amendments to procedural law apply retroactively absent a
clear expression of legislative intent to the contrary. Skakel, 888 A.2d at 1020.
Reaching the same result, at least one court has discarded the various constructions
of procedural versus substantive; prospective versus retrospective or retroactive; or
strict versus liberal and simply concluded amendments to statute of limitations
should apply retroactively absent express legislative intent to the contrary. State v.
Hodgson, 740 P.2d 848, 851 (Wash. 1997) (suggesting such labels tend to obscure
rather than clarify the law). 24

24
     Hodgson further stated:

               We deem it helpful to consider the issue in more
               fundamental terms of precisely what statutes of limitation
               in criminal cases are, and how they function . . . there is no
               such thing as a common law statute of limitation in
               criminal cases. Such statutes of limitation are matters of
               legislative grace; they are a surrendering by the sovereign
               of its right to prosecute. Since they are measures of public
               policy only, and subject to the will of the legislature as
               such, they may be changed or repealed in any case where
               . . . the statutory period of limitation [has not expired].

740 P.2d at 851.


                                             13
LOPEZ de VICTORIA – ARMY 20061248

                           VI. Federal Circuit Court Cases

       Examining applicable federal circuit case law dealing with extending statutes
of limitations in this area provides further guidance. In 2005, in United States v.
Jeffries, the Eighth Circuit Court of Appeals addressed whether the VCAA and 18
U.S.C. § 3283 applied retroactively. The government indicted Jeffries in August
2003 for sexual offenses he committed against his niece beginning in 1988 when she
was five years old and continuing until 1992. Without Congress extending the time
to prosecute Jeffries’ offenses by enacting 18 U.S.C. § 3509(k) in 1990, the
prosecution would have been barred as of 1993. Jeffries, 405 F. 3d. at 684.

       Congress further acted on the statute of limitations in 1994, and, in 2003, re-
codified § 3283 to apply until the death of the child in cases with a Jeffries scenario.
The appellant in Jeffries claimed the statute of limitations barred the government
from prosecuting because Congress did not clearly express its intent to retroactively
apply the statute of limitations amendment. According to the appellant in Jeffries,
“without such clear statement each provision is presumed to operate prospectively
with no application to offenses before the date of its enactment.” 405 F. 3d. 684.
Relying on Stogner, the Court rejected this assertion noting that “both the title and
the wording of § 3509(k) [recodified as § 3283] indicate that Congress intended by it
to extend the general statute of limitations.” Id.

        In the instant case, appellee correctly notes the 2003 Amendment to Article 43
fails to include the broad, expansive language of § 3905k: “No statute of limitation
that would otherwise preclude prosecution . . . shall preclude prosecution before the
child reaches the age of 25 years.” This amendment to Article 43 also does not
contain language comparable to any of the language cited in Stogner. It is true that
when addressing federal practice, Congress needed to include expansive language to
preempt the lesser limitations periods found in multiple federal statutes of
limitations. On the other hand, when addressing military practice, Congress needed
only to amend a single statute of limitations.

        In United States v. Chief, the Court of Appeals for the Ninth Circuit addressed
retroactively applying an extension of the statute of limitations for child abuse from
age twenty-five of the child victim to the life of the child victim. Like the appellant
in Jeffries and the appellee in the instant case, Chief argued that the extended statute
of limitations could only be applied prospectively without a clause expressly
granting retroactivity. Id. at 923. The court rejected this “creative, but ultimately
misdirected” argument. Id. at 922. Citing its decision in a previous civil case, the
court held “when Congress repeals one statute of limitations by enacting another, the
second statute of limitations can ‘simultaneously replace[]’ the former statute and
apply even to cases in which the actions at issue predate the most recent statute.”
Id. at 924 (citing Friel v. Cessna Aircraft Co, 751 F.2d 1037, 1039 (9th Cir. 1985)).

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LOPEZ de VICTORIA – ARMY 20061248

To determine whether a new statute of limitations simultaneously repealed and
replaced an older one, the court looked to Congressional intent and concluded
“Congress intended to extend the statute of limitations for sexual abuse crimes
without reverting” to an earlier limit. Id. Chief, 438 F. 3d. at 924.

       The Chief court also considered whether there were any reasons why the
statute of limitations should not apply retroactively. Id. Relying again on Friel, the
Ninth Circuit, with convincing logic, held “when a newly enacted statute of
limitations effects only a remedial change but does not alter substantive rights, there
is no reason to apply it only prospectively.” Id. at 924. Recognizing it paralleled
the approach of the Eighth Circuit Court of Appeals in Jeffries, the court determined
“[b]ecause Congress evinced a clear intent to extend, rather than shorten, the statute
of limitations applicable to sexual abuse crimes, and because there is no ex post
facto problem here, the prosecution was timely.” Id. at 924–25.

                          VII. Article 43 Applies Retroactively

       Consistent with existing federal precedent, we hold the 2003 Amendment to
Article 43, extending the statute of limitations from five years until the child
victim’s twenty-fifth birthday applies retroactively. Retroactively applying the
extension to the statute of limitations is consistent with Congressional efforts to
expand the reach of the law to those who sexually abuse children. Unlike earlier
cases where there may have been little interest in reaching back to prosecute those
who willfully evaded the Vietnam War draft, 25 we find no interest advanced by
applying the extension only to service members who molest children after November
2003. Senator Nelson’s remarks when introducing the Amendment to Article 43
reflect a Congressional intent to apply the extended statute of limitations
retroactively. 26 We decline to mechanically apply rules of strict constriction to
frustrate Congressional intent under these circumstances.

25
     See United States v. Toussie, supra and United States v. Richardson, supra.
26
  Furthermore, after Congress amended Article 43 in 2003, the discussion section to
R.C.M. 907(b)(2) (addressing waivable grounds for motions to dismiss) and limiting
the retroactive application to offenses committed on or after 24 November 1998 was
changed:

               The Discussion following R.C.M. 907(b)(2)(B) is amended
               . . . [for] child [] abuse cases in which the five-year statute
               of limitations was expired at the time of the amendment to
               Article 43, UCMJ, became effective. See generally Stogner

                                                                      (continued . . .)
                                             15
LOPEZ de VICTORIA – ARMY 20061248

       In so holding, we acknowledge that statutes of limitations advance important
interests by encouraging speedy investigation and prompt enforcement of the law.
They discourage stale prosecutions and enable an accused to present better defenses
when witnesses are still available and memories are fresh. In child abuse cases,
however, since victims sometimes do not report what happened to them until years
later, Congress could reasonably conclude longer statutes of limitations are needed.
In the last analysis, time limitations are a matter of statutory grace. Congress may
extend them to allow for the continued prosecution of offenses provided that there is
no violation of the Ex Post Facto Clause of our Constitution.

                                      Conclusion

       As prosecution in the instant case was not time barred when Congress
amended Article 43, we hold that there is no violation of the Ex Post Facto Clause.
We conclude that the extended statute of limitations applies in this case to the
specifications of indecent acts with a child and indecent liberties with a child and
that the military judge erred as a matter of law. Accordingly, the decision of the
military judge setting aside these findings and the sentence is set aside. The court-
martial of Sergeant Lopez de Victoria may proceed in accordance with R.C.M.
908(c)(3).

      Judge SULLIVAN and Judge HOLDEN concur.
                                  FOR THE COURT:




                                  MALCOLM H. SQUIRES, JR.
                                  Clerk of Court


(. . . continued)
               v. California . . . All child abuse offenses committed prior
               to that date would be subject to the previous statute of
               limitations that would expire on the day prior to the
               effective date of the amendment—November 24, 2003.
               [Stogner] permits unexpired periods to be extended by the
               new statute, but does not allow the statute to renew an
               expired period.

Exec. Order No. 13, 387, 70 Fed. Reg. 60697, 60705, 60708 (Oct. 18, 2005)
(emphasis added).


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