       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
       Michael J. D. BRIGGS, Lieutenant Colonel
            United States Air Force, Appellant
                          No. 16-0711
                      Crim. App. No. 38370
     Argued December 4, 2018—Decided February 22, 2019
       Military Judges: Dawn R. Eflein (arraignment) and
                     Donald R. Eller (trial)

   For Appellant: Stephen I. Vladeck, Esq. (argued); Major
   Johnathan D. Legg and Terri R. Zimmermann, Esq. (on
   brief).
   For Appellee: Mary Ellen Payne, Esq. (argued); Lieutenant
   Colonel Joseph Kubler (on brief).


   Judge MAGGS delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN,
   OHLSON, and SPARKS, joined.
                   _______________

   Judge MAGGS delivered the opinion of the Court.

    In 2014, a general court-martial composed of a military
judge alone found Appellant guilty, contrary to his plea, of
one charge and one specification of rape in violation of Arti-
cle 120(a), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920(a) (2000), for conduct that occurred in 2005. For
reasons set out below, we conclude that the applicable stat-
ute of limitations requires the finding and sentence to be set
aside and the charge and specification to be dismissed.
         I. Factual and Procedural Background
   In May 2005, Appellant was a Captain and an F-16 in-
structor pilot. Airman First Class (A1C) DK was assigned to
the aircrew life support equipment section of Appellant’s
squadron. Following an evening of heavy drinking at or near
Mountain Home Air Force Base in Colorado, Appellant went
              United States v. Briggs, No. 16-0711/AF
                       Opinion of the Court

to A1C DK’s room and forced her to have sex with him even
though she said “no” and “stop” and tried to roll away. A1C
DK did not immediately report the incident to law enforce-
ment authorities, but she did tell others about it.
    Both Appellant and A1C DK remained in the Air Force
after their 2005 encounter. By July 2013, Appellant had be-
come a Lieutenant Colonel, and DK had become a Staff Ser-
geant (SSgt). SSgt DK telephoned Appellant to discuss the
incident. Without Appellant’s knowledge, SSgt DK recorded
their conversation. During the telephone call, Appellant
acknowledged his misconduct. He specifically told SSgt DK:
“I will always be sorry for raping you.”
    The recording of the telephone call and other information
led to the preparation of a sworn charge and specification of
rape, which was received by the summary court-martial
convening authority on February 18, 2014, more than eight
years after the rape occurred.1 The case was subsequently
referred to a general court-martial. Appellant did not raise
the statute of limitations before or during the trial, and the
military judge did not advise Appellant that the statute of
limitations might provide a basis for dismissing the charge
and specification.2 Contrary to his plea, the military judge
found Appellant guilty of the charge and specification and
sentenced him to a dismissal, confinement for five months,
and a reprimand. The convening authority approved the
sentence as adjudged.
   Appellant first attempted to raise the statute of
limitations when he appealed to the United States Air Force
Court of Criminal Appeals (AFCCA). After initially asserting
several unrelated assignments of error, Appellant sought
leave to file a supplemental assignment of error asserting

   1  For offenses that have a period of limitations, the accused
has a defense if the period of limitations expires before the “re-
ceipt of sworn charges and specifications by an officer exercising
summary court-martial jurisdiction over the command.” Article
43(b)(1), (2)(A), 10 U.S.C. §§ 843(b)(1), (2)(A).
   2  As discussed further below, Rule for Courts-Martial (R.C.M.)
907(b)(2)(B) requires the military judge to inform the accused of
the right to assert the statute of limitations as a defense “if it ap-
pears that the accused is unaware of [this] right.”



                                  2
             United States v. Briggs, No. 16-0711/AF
                      Opinion of the Court

the statute of limitations. The AFCCA, however, denied
leave to file the supplemental assignment of error because
Appellant had not raised the statute of limitations at trial.
The AFCCA subsequently rejected Appellant’s other
assignments of error and affirmed the adjudged and
approved findings and sentence. United States v. Briggs, No.
ACM 38730, 2016 CCA LEXIS 385, 2016 WL 3682568 (A.F.
Ct. Crim. App. June 23, 2016).
    Appellant then filed a petition for grant of review in this
Court. The assignments of error in the petition’s supplement
did not address the statute of limitations, but pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Ap-
pellant personally asserted that his trial counsel was inef-
fective for failing to raise and litigate a statute of limitations
defense. We granted review of one assignment of error con-
cerning the judicial composition of the AFCCA. United
States v. Briggs, 75 M.J. 467 (C.A.A.F. 2016). We denied re-
view of the ineffective assistance of counsel issue concerning
counsel’s failure to raise the statute of limitations. United
States v. Briggs, 76 M.J. 36 (C.A.A.F. 2016). We then af-
firmed the decision of the AFCCA by summary disposition.3
United States v. Briggs, 76 M.J. 338 (C.A.A.F. 2017).
    Appellant next petitioned the Supreme Court of the
United States for a writ of certiorari. The Supreme Court
initially denied Appellant’s petition along with others
presenting the judicial composition issue. Abdirahman v.
United States, 138 S. Ct. 2702 (2018) (mem.). But on
reconsideration, the Supreme Court granted the petition as
to Appellant, vacated our judgment affirming the AFCCA,
and remanded the case to us for further consideration in
light of our decision in United States v. Mangahas, 77 M.J.
220 (C.A.A.F. 2018). Abdirahman v. United States, 139 S.
Ct. 38 (2018).


   3  Appellant contended that one judge on the AFCCA was dis-
qualified because he was also assigned as a judge on the United
States Court of Military Commission Review. We rejected the ar-
gument because we previously had rejected the same argument in
United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017). The Supreme
Court subsequently affirmed our judgment. United States v. Ortiz,
138 S. Ct. 2165 (2018).



                                3
            United States v. Briggs, No. 16-0711/AF
                     Opinion of the Court

    Mangahas is a case concerning the statute of limitations
for rape that we decided while Appellant’s petition for certi-
orari was pending. In Mangahas, we corrected our interpre-
tation of the version of Article 43(a), UCMJ, 10 U.S.C.
§ 843(a), that was in force from 1986 until 2006. 77 M.J. at
222. That version of Article 43(a), UCMJ, provided that “any
offense punishable by death, may be tried and punished at
any time without limitation.” 10 U.S.C. § 843(a) (1994). Two
precedents of this Court, United States v. Stebbins, 61 M.J.
366, 369 (C.A.A.F. 2005), and Willenbring v. Neurauter, 48
M.J. 152, 178 (C.A.A.F. 1998), had interpreted this language
to mean that the offense of rape did not have a period of lim-
itations because at the time those cases were decided, Arti-
cle 120(a), UCMJ, provided that rape may “be punished by
death or such other punishment as a court-martial may di-
rect.” In Stebbins and Willenbring, we recognized that the
Supreme Court had earlier held in Coker v. Georgia, 433
U.S. 584, 598 (1977), that imposing capital punishment for
the offense of rape of an adult woman would violate the
Eighth Amendment of the United States Constitution.
Stebbins, 61 M.J. at 369; Willenbring, 48 M.J. at 178. But in
both cases we concluded that the Coker decision did not af-
fect the application of Article 43(a) to the offense of rape as
defined in Article 120(a). Stebbins, 61 M.J. at 369;
Willenbring, 48 M.J. at 178. In Mangahas, however, we re-
considered this view because there is, in fact, no set of cir-
cumstances under which anyone could constitutionally be
punished by death for the rape of an adult woman. 77 M.J.
at 223−24. Accordingly, we overruled Stebbins and
Willenbring to the extent that they held that rape was pun-
ishable by death at the time of the charged offenses. Id. at
222. We then concluded that the period of limitations for
rape of an adult woman under the version of Article 43(a),
UCMJ, in force from 1986 until 2006, was five years. Id.
    Reconsidering Appellant’s statute of limitation defense in
light of Mangahas in this remand also requires us to address
whether a 2006 amendment to Article 43, UCMJ, made by
the National Defense Authorization Act for Fiscal Year 2006
(NDAA FY 2006), Pub. L. No. 109-163, §§ 552−53, 119 Stat.
3136, 3264 (2006), applies to an offense that occurred before
its enactment. The relevant amendment, as discussed



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             United States v. Briggs, No. 16-0711/AF
                      Opinion of the Court

further below, provides that the offense of rape “may be
tried and punished at any time without limitation.” Article
43(a), UCMJ, 10 U.S.C. § 843(a) (2012) (as amended by
NDAA FY 2006 § 553). The Court in Mangahas noted the
existence of the 2006 amendment to Article 43, UCMJ, but
concluded that the amendment did not affect the issues
before it. See generally Mangahas, 77 M.J. at 222 n.2.4 To
determine the effect, if any, of the 2006 amendment to
Article 43, UCMJ, on this case, we asked the parties to brief
and argue two issues:
       I. DOES THE 2006 AMENDMENT TO ARTICLE
          43, UCMJ, CLARIFYING THAT RAPE IS AN
          OFFENSE    WITH    NO  STATUTE    OF
          LIMITATIONS, APPLY RETROACTIVELY TO
          OFFENSES      COMMITTED      BEFORE
          ENACTMENT OF THE AMENDMENT BUT
          FOR WHICH THE THEN EXTANT STATUTE
          OF LIMITATIONS HAD NOT EXPIRED?
       II. CAN APPELLANT SUCCESSFULLY RAISE A
           STATUTE OF LIMITATIONS DEFENSE FOR
           THE FIRST TIME ON APPEAL?
United States v. Briggs, 78 M.J. 106 (C.A.A.F. 2018). We
turn now to these issues.
II. Effect of the 2006 Amendment to Article 43, UCMJ
    In light of our decision in Mangahas, the parties agree
that the version of Article 43, UCMJ, that existed at the
time of Appellant’s charged offense in 2005 established a
five-year period of limitations. They further agree that, if
Congress had not amended Article 43, UCMJ, in 2006, the
period of limitations would have run in 2010, long before the
charges in this case were received by the convening
authority in 2014. What they disagree about is whether the
2006 amendment to Article 43, UCMJ, applies retroactively
to a rape that occurred in 2005, thereby eliminating the
statute of limitations for that offense. In other words, if the

   4 In Mangahas, the statute of limitations had run prior to the
enactment of the 2006 amendment. The Supreme Court has held
that applying a new statute of limitations to revive a previously
time-barred prosecution violates the Constitution’s Ex Post Facto
Clause. Stogner v. California, 539 U.S. 607, 610 (2003). The 2006
amendment therefore could not apply to the case.



                               5
            United States v. Briggs, No. 16-0711/AF
                     Opinion of the Court

2006 amendment does not apply retroactively, the finding of
guilt in this case should be set aside and the charge and
specification of this case should be dismissed. But if the 2006
amendment does apply retroactively, the conviction may
stand.
    The relevant portion of the 2006 amendment is as
follows:
      SEC. 553. EXTENSION OF STATUTE OF
        LIMITATIONS FOR MURDER, RAPE, AND
        CHILD ABUSE OFFENSES UNDER THE
        UNIFORM CODE OF MILITARY JUSTICE.
      (a) NO LIMITATION FOR MURDER OR RAPE.—
         Subsection (a) of section 843 of title 10, United
         States Code (article 43 of the Uniform Code of
         Military Justice), is amended by striking “or
         with any offense punishable by death” and in-
         serting “with murder or rape, or with any other
         offense punishable by death”.
NDAA FY 2006 § 553(a).
    Appellant contends that the 2006 amendment applies on-
ly to conduct occurring after its enactment, and that the pe-
riod of limitations applicable to his conduct is five years
based on the statute of limitations in effect when the rape
occurred. The Government takes the opposite position, as-
serting that the 2006 amendment applies and permits Ap-
pellant to be tried and punished for a rape that occurred in
2005, before the enactment of the 2006 amendment.
    We generally apply the statute of limitations that was in
effect at the time of the offense. Mangahas, 77 M.J. at 222
(citing Toussie v. United States, 397 U.S. 112, 115 (1970)).
We generally presume that subsequent amendments do not
apply because there is both a presumption against retroac-
tive legislation, see INS v. St. Cyr, 533 U.S. 289, 316 (2001),
and a presumption in favor of repose, United States v.
Habig, 390 U.S. 222, 227 (1968). The Supreme Court, more-
over, has instructed that “congressional enactments . . . will
not be construed to have retroactive effect unless their lan-
guage requires this result.” Bowen v. Georgetown Univ. Hos-
pital, 488 U.S. 204, 208 (1988).




                               6
             United States v. Briggs, No. 16-0711/AF
                      Opinion of the Court

    We followed these principles in United States v. Lopez de
Victoria, 66 M.J. 67, 73−74 (C.A.A.F. 2008). In that case, the
accused was charged in 2006 with committing indecent acts
with a child between 1998 and 1999. Id. at 68. At the time of
the offense, the period of limitations for this offense under
Article 43(b), UCMJ, was five years. Id. at 71. But in 2003,
Congress amended Article 43(b), UCMJ, establishing a new
period of limitations for indecent liberties with a child that
expires when the child turns twenty-five years old. Id. at 72
(citing Article 43(b)(2)(A), UCMJ, 10 U.S.C. § 843(b)(2)(A)).
The question was whether the amended statute of limita-
tions governed the case. We concluded that the 2003
amendment did not apply based on the general presumption
against retroactive legislation, the general presumption in
favor of liberal construction of criminal statutes of limitation
in favor of repose, and the absence of any indication of con-
gressional intent to apply the 2003 amendment retrospec-
tively. Id. at 74.
    Appellant argues that we should apply the same analysis
to this case that we applied in Lopez de Victoria and that we
should similarly conclude that the 2006 amendment to Arti-
cle 43, UCMJ, does not apply to his case. We agree. The pre-
sumption against retroactive legislation and the presump-
tion in favor of liberal construction of criminal statutes of
limitation in favor of repose apply with equal force because
we see nothing in the text of the 2006 amendment that indi-
cates that the amendment should have a retroactive effect.
Section 553(a) does not distinguish between offenses that
have already occurred and those that have not and does not
specify an effective date. In Lopez de Victoria, we concluded
that similar silence in the text of the 2003 amendment was
ineffective to overcome the presumption against retroactivi-
ty and the presumption in favor of repose. Id. at 73–74.
   To the extent that legislative history might be relevant,5
we also see nothing that indicates any intention for the 2006

   5  We considered legislative history in Lopez de Victoria, 66
M.J. at 73. Since that decision, the Supreme Court has explained
that “legislative history is not the law” and that courts “do not in-
quire what the legislature meant” but instead “ask only what the
statute means.” Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1631
(2018) (internal quotation marks omitted) (citations omitted). In


                                 7
             United States v. Briggs, No. 16-0711/AF
                      Opinion of the Court

amendment to apply retroactively. The NDAA FY 2006 was
introduced in Congress in 2005 as H.R. 1815. No version of
this bill as it worked its way through the House and Senate
contained any provision indicating that the amendment
would apply retroactively. See National Defense Authoriza-
tion Act for Fiscal Year 2006, H.R. 1815, 109th Cong. (2005),
https://www.congress.gov/bill/109th-congress/house-
bill/1815/text (providing the text of H.R. 1815 as introduced,
reported, and engrossed in the House, as referred and en-
grossed in the Senate, and as an enrolled bill). The discus-
sions of the amendment in the House Report and the Con-
ference Report also say nothing about retroactivity. See H.R.
Rep. No. 109-89, at 314, 342 (2005) (House Report); H.R. No.
109-360, at 703 (2005) (Conference Report). In Lopez de Vic-
toria, we recognized a similar absence of evidence in the leg-
islative history as a key factor in concluding that the 2003
amendment did not establish the period of limitations for
offenses that had already occurred. 66 M.J. at 73.
    The Government, however, argues that Congress intend-
ed the 2006 amendment to apply retroactively because the
context of the 2006 amendment is different from the context
of the 2003 amendment that we considered in Lopez de Vic-
toria. In 2003, Congress clearly intended to change the peri-
od of limitations applicable to the offense of indecent liber-
ties. But in 2006, the Stebbins and Willenbring precedents
had established that rape had no period of limitations. Thus,
according to the Government, Congress must have believed
that it was merely codifying this Court’s precedent, not
changing the law. In such circumstances, the Government
asserts, Congress would have intended to maintain the sta-
tus quo and would have wanted the amendment to apply to
offenses occurring both before and after the effective date of
the amendment.
   We reject this argument for two reasons urged by Appel-
lant. First, the 2006 amendment to Article 43(a), UCMJ,


the matter before us, however, no party has asked us to reconsider
the approach of Lopez de Victoria and whether relying on legisla-
tive history is appropriate when determining whether statutory
amendments apply retroactively. We therefore leave that question
for another case.



                                8
             United States v. Briggs, No. 16-0711/AF
                      Opinion of the Court

was not limited to rape; it also eliminated the previous five-
year period of limitations for unpremeditated murder.6 Con-
gress therefore did not intend the 2006 amendment simply
to maintain the status quo. Second, even if Congress be-
lieved that the amendment was codifying existing law with
respect to the statute of limitations for rape, that belief
alone would not imply that Congress intended for the
amendment to apply retroactively. In such circumstances,
Congress would have had no reason to consider the issue of
retroactivity. And if Congress did not actually decide to
make the statute apply retroactively, then the presumption
of non-retroactivity should control. See Lopez de Victoria, 66
M.J. at 74.

    The Government alternatively argues that applying the
2006 amendment to Appellant’s conduct is not truly a “ret-
roactive” application of the law because the 2006 amend-
ment did not attach any new legal obligations on Appellant.
The Government explains that the 1998 Willenbring prece-
dent put Appellant on notice that his offense might not have
a period of limitations. The 2006 amendment merely con-
firmed what Willenbring already said.

    We recognize that not all changes to a statute that affect
conduct that occurred prior to its enactment have a “retroac-
tive effect.” Landgraf v. USI Film Products, 511 U.S. 244,
270 (1994). But the Government’s argument that the 2006
amendment did not have a retroactive effect is foreclosed by
our analysis in Lopez de Victoria. In Lopez de Victoria, we
held that applying an extended statute of limitations to con-


   6  From 1986 until 2006, Article 43(a), UCMJ, provided no
period of limitations for “offenses punishable by death” and a five-
year period of limitations for other offenses. See National Defense
Authorization Act for Fiscal Year 1987, Pub. L. No. 99-661,
§ 805(a), 100 Stat. 3816, 3908 (1986) (subsequently amended by
NDAA FY 2006 §§ 552−53). Unpremeditated murder in violation
of Article 118(2), UCMJ, is not an offense punishable by death.
Article 118(2), (4), UCMJ, 10 U.S.C. § 918(2), (4). Accordingly, any
unpremeditated murder committed between 1986 and 2006 had
only a five-year period of limitations. See Willenbring, 48 M.J. at
178−79 (discussing the history of amendments to Article 43,
UCMJ).



                                 9
            United States v. Briggs, No. 16-0711/AF
                     Opinion of the Court

duct that had already occurred attached new legal conse-
quences to that conduct and thus was a retroactive applica-
tion of the law. 66 M.J. at 73. On the basis of this precedent,
we conclude that applying the 2006 amendment to Appel-
lant’s conduct, which occurred in 2005 and prior to the
amendment, has an impermissible retroactive effect.

   III. Waiver, Forfeiture, and Related Arguments
   R.C.M. 907(b)(2)(B) addresses the procedure for asserting
the statute of limitations. It provides:
      A charge or specification shall be dismissed upon
      motion made by the accused before the final ad-
      journment of the court-martial in that case if:
          ....
         (B) The statute of limitations (Article 43) has
      run, provided that, if it appears that the accused is
      unaware of the right to assert the statute of limita-
      tions in bar of trial, the military judge shall inform
      the accused of this right . . . .
The parties agree on two points about the meaning of this
complex provision. First, the accused has a right before final
adjournment of the case to assert the statute of limitations
as a ground for dismissing a charge or specification. Second,
the military judge must inform the accused of this right if it
appears that the accused is unaware of it. They disagree,
however, about what should happen in a case like this in
which (1) the accused did not raise the statute of limitations
before or at trial, (2) the military judge did not inform the
accused of the right to raise the statute of limitations, and
(3) raising the statute of limitations most likely would have
been futile because precedents in effect at the time of trial
held that there was no period of limitations for the offense of
rape.
    In the Government’s view, R.C.M. 907(b)(2)(B) merely
prevents a reviewing court from concluding that the accused
knowingly and intentionally waived the statute of limita-
tions as a defense. The Government asserts that the review-
ing court still must treat the defense as forfeited, and may
reverse a finding of guilt only if it finds plain error. See
United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (for-
feited issues are reviewed for plain error). In this case, the


                               10
            United States v. Briggs, No. 16-0711/AF
                     Opinion of the Court

Government contends that the Court cannot find plain error
because the Supreme Court held in Musacchio v. United
States, 136 S. Ct. 709, 718 (2016), that an accused’s failure
to assert the statute of limitations is not plain error.
    We disagree. 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 de-
fendant puts the defense in issue.” Id. 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 er-
ror.” Id. 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. We therefore can
review Appellant’s failure to raise the statute of limitations
for plain error.
    To establish plain error, Appellant must show “(1) error
that is (2) clear or obvious and (3) results in material preju-
dice to his substantial rights.” United States v. Armstrong,
77 M.J. 465, 469 (C.A.A.F. 2018) (internal quotation marks
omitted) (citation omitted). Plain error is assessed at the
time of appeal. United States v. Harcrow, 66 M.J. 154, 159
(C.A.A.F. 2008) (“where the law at the time of trial was set-
tled and clearly contrary to the law at the time of appeal—it
is enough that an error be plain at the time of appellate con-
sideration” (internal quotation marks omitted) (citation
omitted)). Our decision in Mangahas has now established
that the period of limitations for a rape committed in 2005
was five years. Accordingly, it was clear and obvious error—
at least as assessed in hindsight on appeal, entertaining the
fiction that Mangahas had been decided at the time of Ap-
pellant’s court-martial—for the military judge not to inform
Appellant of the five-year period of limitation when the




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            United States v. Briggs, No. 16-0711/AF
                     Opinion of the Court

sworn charges against him were received by the summary
court-martial convening authority in 2014.
    This clear and obvious error warrants relief because the
error “results in material prejudice to [Appellant’s] substan-
tial rights.” Armstrong, 77 M.J. at 469. If the military judge
had informed Appellant of a possible statute of limitations
defense, it requires no speculation to believe that Appellant
would have sought dismissal. Indeed, Appellant testified
that after being confronted by the victim eight years after
the offense, he researched the statute of limitations to see if
it provided a defense.
                       IV. Judgment
    The judgment of the United States Air Force Court of
Criminal Appeals is reversed. The finding and sentence are
set aside. The charge and specification are dismissed.




                              12
