UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellant
Vv.
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);
Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H. Williams, JA; Captain
Allison L. Rowley, JA (on Reply to Motion for Reconsideration).

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); Colonel Elizabeth G.
Marotta, JA; Major Patrick G. Hoffman, JA; Captain Benjamin A. Accinelli, JA (on
Motion for Reconsideration).

2 October 2019

MEMORANDUM OPINION AND ACTION ON
RECONSIDERATION 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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
FLEMING, Judge:

Appellee requests this court to reconsider our decision that pre-referral
amendments to two sexual assault specifications did not constitute a major change
MOORE—ARMY MISC 20180692

and, because the amendments constituted only a minor change, the military judge
erred in ruling that the statute of limitations applied to the specifications.! Appellee
contends reconsideration is warranted in light of our Superior Court’s decision in
United States v. English, 79 M.J. 116 (C.A.A.F. 2019). Although we do not find
English applicable to appellee’s case,” we note that our Superior Court recently
decided United States v. Stout, _M.J.__, 2019 CAAF LEXIS 648 (C.A.A.F. 22
August 2019), which addressed pre-referral amendments.

Upon reconsideration, we find Stout distinguishable based on the unique facts
of this case, and hold the military judge did not err in determining that the five-year
statute of limitations applied to the two sexual assault specifications because the
pre-referral amendments constituted a major change. We now affirm the military
judge’s ruling dismissing Specification 3 of Charge I and partially dismissing
Specification 2 of Charge I.?

BACKGROUND

A detailed background of the procedural history in this case can be found in
our original decision. Moore, 2019 CCA LEXIS 290 at *2-10. The essential facts
relevant to appellee’s reconsideration request follow.

Appellee was originally convicted in 2014 by a panel of officers sitting as a
general court-martial, 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.

 

' Our previous decision is located at United States v. Moore, ARMY MISC
20180692, 2019 CCA LEXIS 290 (Army Ct. Crim. App. 3 July 2019).

* In English, the Court of Appeals for the Armed Forces held this court exceeded its
appellate authority by excepting language from a specification and affirming the
conviction based on a theory of criminality not presented at trial. 79 M.J. at 119.
This is simply not the issue in this case.

> This decision does not address appellee’s contention that this court does not have
jurisdiction, under Article 62, UCMJ, regarding a partially dismissed specification.
For the same reasons stated in our previous decision in this case, we hold that we do
have jurisdiction. Moore, 2019 CCA LEXIS 290, at *10-16.
MOORE—ARMY MISC 20180692

On appeal, pursuant to United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016),
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 five 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 62 (C.A.A.F. 10 Jan.
2018).

At appellee’s rehearing, trial counsel amended the five specifications prior to
referral. Specifically, 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.”

The defense moved to dismiss three of the amended specifications as being
outside the statute of limitations. The military judge granted the defense motion.
The government does not appeal the ruling dismissing these specifications. The
military judge convicted appellee of the two remaining sexual assault specifications.
(Specifications 2 and 3 of Additional Charge I).*

After the trial’s adjournment but prior to the authentication of the record of
trial, defense counsel filed a post-trial motion to dismiss the two remaining sexual
assault specifications as barred by the statute of limitations. It appears from the
record that the military judge and counsel were unaware that the dates of the two
specifications fell into a narrow eighteen month “window” between the beginning
effective date for the offense (28 June 2012) and the beginning effective date
eliminating a statute of limitations bar for the offense (26 December 2013). More
simply stated, the five-year statute of limitations still applied to offenses charged as
occurring within the timeframe of 28 June 2012 to 25 December 2013.°

Based on this oversight as to the applicable statute of limitations, the military
judge granted defense counsel’s motion to dismiss Specification 3 of Additional
Charge I, and granted a partial dismissal of Specification 2 of Additional Charge I,

 

4 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.

> “fA] 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.” UCM art. 43(b)(1), 10 U.S.C. § 843(b)(1) (2006 & Supp. V 2012).
MOORE—ARMY MISC 20180692

finding that only a portion of the date range charged in that specification was barred
by the statute of limitations.

The government appealed the military judge’s ruling pursuant to Article 62,
UCM.J, asserting the amendments did not constitute major changes, and as such, the
statute of limitations had not expired. Our original decision on the Article 62 appeal
concluded the amendments in this case were minor. Moore, 2019 CCA LEXIS 290,
at *16-19.

LAW AND DISCUSSION
A. Major Change

It is important to highlight that this case is about the statute of limitations,
under Article 43, UCMJ, and Rule for Courts-Martial [RCM] 907(b), which merely
requires an application of the legal framework of R.C.M. 603(d) to determine if a
major or minor change exists implicating the statute of limitations.

First, we pause to recognize that Stout did not involve a statute of limitations
issue. Although Stout involved only a major or minor change motion under RCM
603(d), as opposed to the R.C.M. 907(b) issue at bar, we nonetheless find the
opinion relevant to our reconsideration of appellee’s case. 2019 CAAF LEXIS 648.

In Stout, the Court of Appeals for the Armed Forces (CAAF) was presented
with the issue of whether the government was permitted to amend the time frame of
the charged offenses pre-referral to conform to the victim’s testimony at the
preliminary hearing. 2019 CAAF LEXIS 648 at *1. The CAAF held that “prior to
referral, Article 34, UCMJ, specifically permits changes to conform the charges and
specifications to the substance of the evidence in the report prepared by the
investigating officer under [Article 32, UCMJ].” 2019 CAAF LEXIS 648, at *2. In
reaching this conclusion, the CAAF noted “we need not resolve the question of
whether the changes in [a]ppellant’s case were ‘major.’” Jd. at n.2.

Unlike Stout, we are faced with an Article 43, UCMJ, instead of an Article 34,
UCMJ, concern. We are required to resolve the question of whether the amendments
in this case were major or minor. The R.C.M. 907(b) Discussion directs:

If sworn charges have been received by an officer
exercising summary court-martial jurisdiction over the
command within the period of the statute, minor
amendments (see R.C.M. 603(a)) may be made in the
specification after the statute of limitations has run.
However, if new charges are drafted or a major
MOORE—ARMY MISC 20180692

amendment made (see R.C.M. 603(d)) after the statute of
limitations has run, prosecution is barred.

(emphasis added).

“Whether a change made to a specification is minor is a matter of statutory
interpretation and is reviewed de novo.” United States v. Reese, 76 M.J. 297, 300
(C.A.A.F. 2017) (citing United States v. Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016)).
Rule for Courts-Martial 603(a) provides “[m]Jinor 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.” Jd. (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.”

In appellee’s case, the 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 “penetrating [AR’s] vulva with his penis.” In analyzing
this issue, the military judge cited to Reese, 76 M.J. at 299-301, 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.”

Similar to Reese, the amendments in appellee’s case “altered the means of
committing the offense.” 76 M.J. at 300. Based on the original charge, the
government had to prove an offensive touching beyond the alleged penetration, and a
potential defense would involve proving that such a touching did not occur (or did
not cause the sexual act). Changing the bodily harm from a multiple overt offensive
touching to the sexual penetration itself does not “constitute a slight error.” Jd. at
301; see also English, 79 M.J. at 122, n.6 (“The placement of appellant’s hands
during the sexual assault was a substantial fact.”).

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.”). An
MOORE—ARMY MISC 20180692

amendment, which changes the number of elements for a specification, is a major
change.

It can be surmised that the trial counsel made the amended changes in
appellee’s case because he recognized the significant risk that the trier of fact would
acquit the appellee of the charged specifications because AR would not testify that
appellant removed her underwear, placed his hands on her buttocks, and pressed her
down with his hands. “Therefore, it appears that even the Government likely
recognized that [an alteration to the means in which appellee committed the offense
was not a minor change] of little import to the prosecution of the case.” United
States v. Stout, 2019 CAAF LEXIS 648, at *17 n.4 (Ohlson, J., dissenting).

Upon reconsideration of appellee’s case, we find the amendments to the
sexual assault specifications constituted a major change because they added an
additional element which implicated the statute of limitations.

B. Waiver

At trial and on appeal, the government asserts appellee waived his right to
object to the amendments and thus cannot assert the statute of limitations as a
defense.© We disagree, for many of the reasons cited by the military judge.

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, at *5-8 (Army Ct. Crim. App. 29 June 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

 

° In their pleadings, the parties focus on waiver. We 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). At a minimum, however, 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).
MOORE—ARMY MISC 20180692

“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 [three]
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 United States v. Musacchio, 136 S. Ct. 709 (2016), 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 judge 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.” Jd. 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.” Jd. 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 United States v. Collins
cited by the military judge. 78 M.J. 530 (A.F. Ct. Crim. App. 2018). Indeed,
shortly following Briggs, our Superior Court affirmed the Air Force Court’s decision
MOORE—ARMY MISC 20180692

in Collins in a one-sentence opinion. United States v. Collins, 78 M.J. 415
(C.A.A.F. 2019).

At trial, the government also asserted that it was “not barred from prosecuting
[the amended specifications] because of [Article] 43(g).” We 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 days after
the date of dismissal.” See UCMSJ 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 only “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.” We do, too.

The specifications at issue were not dismissed as being defective or
insufficient. Trial counsel merely decided, to the government’s determinant, to
amend the specifications, creating a major change, and triggering the application of
the statute of limitations. Any attempt to apply Article 43(g) to this case is trying to
fit a square peg into a round hole.’

CONCLUSION
The appeal of the United States pursuant to Article 62, UCMJ, is DENIED and
the decision of the military judge is therefore AFFIRMED. We return the record of

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

Judge RODRIGUEZ concurs.

 

7 On appeal, the government also argues, “Even assuming the amendments to [the
specifications] constituted a major change . . . the receipt by the summary court-
martial 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.
MOORE—ARMY MISC 20180692
BURTON, Senior Judge, dissenting:

I agree with the majority that Stout is distinguishable from this case and we
are required to determine if the amendments were major or minor. For the reasons
outlined below, however, I find the military judge erred and respectfully disagree
with the majority’s conclusion that the amendments constituted a major change.

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.
R.C.M. 603(a). Further, appellant was on notice that the initial specification alleged
AR did not consent to the sexual act since the charged language, “removing [AR’s]
underwear, placing his hands on her buttocks, and pressing her down with his
hands,” necessarily implied AR did not consent to the accused “penetrating her
vulva with his penis.” Accordingly, non-consent was fairly included in the initial
specification.

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.” Jd. 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.” I 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.” Jd. at
300 (citation omitted). In light of this analysis, it is clear that notice is still a
critical component of major change issues.

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.
MOORE—ARMY MISC 20180692

In the present case, I 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.

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

In conclusion, I would set aside the military judge’s ruling and thus dissent
from the majority opinion.

FOR THE COURT:

MALCOLM H.S vinean

Clerk of Court

      

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