       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 Appel-
lant 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 de-
termined 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

    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 Appel-
lant’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 ap-
peal 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 proceed-
ings 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 inac-
       tive 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.”



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           United States v. Mangahas, No. 17-0434/AF
                      Opinion of the Court

Ct. Crim. App. Nov. 25, 1999)); see United States v. Sim-
mons, 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. Ac-
cordingly, on October 25, 2017, we ordered additional brief-
ing 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 punish-
able 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 stat-
ute 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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          United States v. Mangahas, No. 17-0434/AF
                     Opinion of the Court

                              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 of-
      fense punishable by death, may be tried and pun-
      ished at any time without limitation.
      (b)(1) Except as otherwise provided in this sec-
      tion (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 specifi-
      cations by an officer exercising summary court-
      martial 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 ap-
ply 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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           United States v. Mangahas, No. 17-0434/AF
                      Opinion of the Court

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) (empha-
sis 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 penal-
ty 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 appli-
cable 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 cir-
cumstances, such punishment cannot be constitutionally in-
flicted. 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 per-
son subject to the UCMJ by cruel and unusual punishment. Arti-
cle 55, UCMJ, 10 U.S.C. § 855 (2012).



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          United States v. Mangahas, No. 17-0434/AF
                     Opinion of the Court

                              II.
    Statutes of limitations represent the legislative judgment
that “it is unjust to fail to put the adversary on notice to de-
fend 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 limita-
tions for “any offense punishable by death,” reflects Con-
gress’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 fa-
vor 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 “of-
fense 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 ordi-
nary meaning. United States v. Schloff, 74 M.J. 312, 313
(C.A.A.F. 2015) (“In the absence of any specific statutory def-
inition, we look to the ordinary meaning of the word.”). In its
plainest terms, “punishable” means “subject to a punish-
ment,” or “to inflict punishment.” Black’s Law Dictionary
1428 (10th ed. 2014); Webster’s Ninth New Collegiate Dic-
tionary 955 (9th ed. 1991). Where, as in Willenbring, there is
no set of circumstances under which the death penalty could


                               6
          United States v. Mangahas, No. 17-0434/AF
                     Opinion of the Court

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 sali-
ent point.
   Second, and relatedly, despite the admonition that crim-
inal 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 in-
clude 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 prece-
dent, 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 fed-
eral civilian cases, none of which are either binding or anal-
ogous 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 deci-
sion 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 punish-
ment 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 deci-
sions that analyzed the relevant statute of limitations re-
flected that point. In those cases the government did not



                               7
          United States v. Mangahas, No. 17-0434/AF
                     Opinion of the Court

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 limita-
tions based on two different grounds. First, the court reject-
ed the argument that the offense was not punishable by
death because the government did not seek the death penal-
ty. 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 con-
stitutionally 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 potenti-
ality 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 punisha-
ble by death for purposes of Article 43, UCMJ. To hold oth-
erwise, as we did in Willenbring, creates a grave “risk of un-
dermining 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.




                               8
