                 U NITED S TATES AIR F ORCE
                C OURT OF C RIMINAL APPEALS
                              ________________________

                                   No. ACM 39296
                              ________________________

                                UNITED STATES
                                    Appellee
                                          v.
                           Richard D. COLLINS
               Master Sergeant (E-7), U.S. Air Force, Appellant
                              ________________________

           Appeal from the United States Air Force Trial Judiciary
                               Decided 23 July 2018 1
                              ________________________

Military Judge: Tiffany M. Wagner.
Approved sentence: Dishonorable discharge, confinement for 198
months, forfeiture of all pay and allowances, and reduction to E-1. Sen-
tence adjudged 26 February 2017 by GCM convened at Eglin Air Force
Base, Florida.
For Appellant: William E. Cassara, Esquire (argued); Captain Dustin J.
Weisman, USAF.
For Appellee: Captain Michael T. Bunnell, USAF (argued); Lieutenant
Colonel Joseph J. Kubler, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge MINK and Judge DENNIS joined.
                              ________________________

                    PUBLISHED OPINION OF THE COURT
                              ________________________




1   We heard oral argument in this case on 28 June 2018.
                     United States v. Collins, No. ACM 39296


JOHNSON, Senior Judge:
    Appellant was found guilty, contrary to his pleas, of one specification of
rape in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920. A general court-martial composed of officer and enlisted members
sentenced Appellant to a dishonorable discharge, confinement for 198 months,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.
    Appellant raises seven issues on appeal: (1) whether the statute of limita-
tions had run on the alleged offense of rape; (2) whether the evidence is factu-
ally insufficient to support the conviction; (3) whether Appellant was denied
effective assistance of counsel guaranteed by the Sixth Amendment 2 where his
trial defense counsel failed to present evidence of an alternative suspect; (4)
whether Appellant was subjected to unreasonable search and seizure in viola-
tion of the Fourth Amendment; 3 (5) whether Appellant was denied his Sixth
Amendment right to confrontation where the military judge permitted a pros-
ecution witness to testify by remote means; (6) whether Appellant’s Fifth
Amendment 4 due process rights were violated by the loss of exculpatory evi-
dence in the 15 years between the alleged offense and the court-martial; and
(7) whether the convening authority committed unlawful command influence. 5
Because, as to the first issue, our superior court’s holding in United States v.
Mangahas, 77 M.J. 220, 225 (C.A.A.F. 2018), compels us to set aside the find-
ings and sentence and to dismiss the charge and specification, we do not ad-
dress the remaining issues.

                                  I. BACKGROUND
    In August 2000, HA was a young Airman attending her initial training as
a radiology technician at Sheppard Air Force Base (AFB), Texas. Appellant
was one of her course instructors. At trial, HA testified that on Friday, 25 Au-
gust 2000, she encountered Appellant when she was eating dinner alone at a
club on base. Appellant appeared to be intoxicated. After Appellant declined
HA’s suggestion that he take a taxi or shuttle home, HA drove Appellant to his
on-base residence. HA helped Appellant out of the vehicle and to his front door
due to his apparently impaired condition. However, once inside the door, Ap-
pellant suddenly pushed HA against the wall and then threw her onto the floor.

2   U.S. CONST. amend. VI.
3   U.S. CONST. amend. IV.
4   U.S. CONST. amend. V.
5Appellant personally asserts issues (6) and (7) pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).


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                   United States v. Collins, No. ACM 39296


HA initially resisted until Appellant struck her in the face. Appellant then
raped HA.
    On the morning of Monday, 28 August 2000, HA arrived for class with a
black eye and scratches on her face and knuckles. HA reluctantly admitted to
a female instructor that she had been raped. As a result, HA was transported
to a hospital where she underwent a sexual assault forensic exam (SAFE), and
the Air Force Office of Special Investigations (AFOSI) and civilian police initi-
ated investigations.
    Initially, HA told AFOSI she was assaulted by an unknown male who dig-
itally penetrated her in an off-base store parking lot the preceding weekend.
When security camera video from the store HA identified failed to corroborate
HA’s statements, AFOSI agents confronted her. HA admitted her account of
the assault was not true. She told the agents she made it up because she did
not want to identify the attacker, but she had been pressured at the hospital
to say what had happened. HA admitted she knew who the assailant was, but
she said she did not want to “ruin a family.” She denied that it had been one of
her course instructors. Because HA refused to identify the perpetrator, AFOSI
and the civilian police eventually dropped their investigations. Civilian author-
ities destroyed the SAFE kit in 2002.
    HA separated from the military in 2003 and then later returned to active
duty in 2007. In April 2011, HA made a restricted sexual assault report to an
Air Force mental health provider, stating that she had previously been physi-
cally and sexually assaulted by an instructor but “did not want to be involved.”
The provider referred HA to a Sexual Assault Response Coordinator, to whom
HA also made a restricted report that she had been sexually assaulted by an
active duty Air Force member at Sheppard AFB, but she did not identify the
assailant. These restricted reports were not referred to law enforcement or in-
vestigated. HA separated from the Air Force again in 2011.
    In March 2014, HA made an unrestricted report to the Chief of Military
Justice at Sheppard AFB, this time identifying Appellant as having raped her
at Sheppard AFB in 2000. This report led AFOSI to reinitiate the investiga-
tion. A single charge and specification of rape were preferred against Appellant
and received by the summary court-martial convening authority on 17 March
2016. On 6 September 2016, the charge and specification were referred for trial
by a general court-martial. Appellant’s court-martial took place at Hurlburt
Field, Florida, on 17 November 2016, and at Eglin AFB, Florida, on 21–26 Feb-
ruary 2017. At trial, Appellant pleaded not guilty and the Defense vigorously
contested the charge and specification. However, the Defense did not object or
move to dismiss the charge and specification on the grounds that they were
barred by the statute of limitations in effect at the time of the alleged offense.



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                      United States v. Collins, No. ACM 39296


                                 II. DISCUSSION
A. Law
    The applicable statute of limitations is a question of law that we review de
novo. Mangahas, 77 M.J. at 222 (citing United States v. Lopez de Victoria, 66
M.J. 67, 73 (C.A.A.F. 2008)). “An accused is subject to the statute of limitations
in force at the time of the offense.” Id. (citing Toussie v. United States, 397 U.S.
112, 115 (1970)). However, “failure to make the timely assertion of a right”
constitutes forfeiture, whereas the “intentional relinquishment or abandon-
ment of a known right” constitutes waiver. United States v. Ahern, 76 M.J. 194,
197 (C.A.A.F. 2017). Where an appellant forfeits a right by failing to make a
timely assertion at trial, appellate courts will review the forfeited issue for
plain error. Id. (citing United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F.
2009)). In a plain error analysis the appellant “has the burden of demonstrat-
ing that: (1) there was error; (2) the error was plain or obvious; and (3) the
error materially prejudiced a substantial right of the accused.” United States
v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011). Waiver, by contrast, “leaves no error
to correct on appeal.” Ahern, 76 M.J. at 197 (citing United States v. Campos,
67 M.J. 330, 332 (C.A.A.F. 2009)).
    Article 43, UCMJ, 10 U.S.C. § 843, provides the statute of limitations for
offenses under the Code. The version of Article 43 in effect in August 2000
stated, inter alia, “A person charged with absence without leave or missing
movement in time of war, or with any offense punishable by death, may be
tried and punished at any time without limitation.” 10 U.S.C. § 843(a) (2000).
Otherwise, the general rule was that “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” by a summary court-martial conven-
ing authority. 10 U.S.C. § 843(b)(1) (2000).
    In Coker v. Georgia, 433 U.S. 584, 592 (1977), the United States Supreme
Court held that the Eighth Amendment 6 forbids imposing the death penalty
for the crime of rape of an adult woman. Coker is binding precedent for Air
Force courts-martial. United States v. McReynolds, 9 M.J. 881, 882 (A.F.C.M.R.
1980) (per curiam); see Mangahas, 77 M.J. at 223; see also United States v.
Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986) (stating that in light of Coker,
the death penalty for rape may not be constitutionally inflicted in absence of
aggravating circumstances). However, in August 2000, the Manual for Courts-
Martial continued to provide that death was an authorized punishment for the
crime of rape under Article 120, UCMJ. Manual for Court-Martial, United
States (2000 ed.), pt. IV, ¶ 45.e.(1).


6   U.S. CONST. amend. VIII.


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                     United States v. Collins, No. ACM 39296


    In Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998), the United
States Court of Appeals for the Armed Forces (CAAF) unanimously held that,
Coker notwithstanding, as a matter of statutory interpretation “rape is an ‘of-
fense punishable by death’ for purposes of exempting it from the 5-year statute
of limitations of Article 43(b)(1).” See also United States v. Stebbins, 61 M.J.
366, 369 (C.A.A.F. 2005) (quoting Willenbring, 48 M.J. at 178) (“[T]he question
of whether the death penalty may be imposed, given the facts and circum-
stances of any particular case, does not control the statute of limitations is-
sue.”)
   In 2006, Congress amended Article 43, UCMJ, to provide that “[a] person
charged with . . . rape or rape of a child . . . may be tried or punished at any
time without limitation.” 10 U.S.C. § 843(a) (2006). 7
    However, the CAAF’s recent decision in Mangahas explicitly overruled its
holding in Willenbring that under the pre-2006 version of Article 43, UCMJ,
the offense of rape was exempt from the general five-year statute of limitations.
77 M.J. at 223–25. Finding that Willenbring was “badly-reasoned” and risked
“‘undermining public confidence in the law,’” the CAAF unanimously held
“where the death penalty could never be imposed for the offense charged, the
offense is not punishable by death for purposes of Article 43, UCMJ.” Id. at
224–25 (quoting United States v. Quick, 74 M.J. 332, 336 (C.A.A.F. 2015)).
Therefore, because the alleged rape of an adult woman in Mangahas occurred
in 1997, 18 years before the charge and specification were received by the sum-
mary court-martial convening authority, the CAAF dismissed the charge and
specification. Id. at 225.
   Rule for Courts-Martial (R.C.M.) 907 provides that the running of the stat-
ute of limitations under Article 43, UCMJ, is waivable grounds for a motion to
dismiss a charge and specification without trial. R.C.M. 907(b)(2)(B) further
provides “that, if it appears that the accused is unaware of the right to assert
the statute of limitations in bar of trial, the military judge shall inform the
accused of this right.” “‘[W]henever it appears that the statute of limitations
has run against an offense,’ that fact will be brought to the attention of the
accused by the court.” United States v. Salter, 20 M.J. 116, 117 (C.M.A. 1985)
(quoting United States v. Rodgers, 24 C.M.R. 36, 38 (C.M.A. 1957)).




7 In 2013, Congress again amended Article 43, UCMJ, to additionally exclude the of-
fenses of sexual assault and sexual assault of a child from the five-year statute of lim-
itations. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113–66,
§ 1703, 127 Stat. 672, 958 (2013) (codified as 10 U.S.C. § 843(a)).


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                     United States v. Collins, No. ACM 39296


   “[O]n direct review, we apply the clear law at the time of appeal, not the
time of trial.” United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010) (citing
United States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F. 2008)).
B. Analysis
    Appellant contends that in light of Mangahas, the military judge commit-
ted plain error which requires this court to set aside the findings and sentence
and to dismiss the charge and specification. We agree.
    Under Mullins and Harcrow, we must apply the clear law at the time of
appeal to cases that, like Appellant’s, are pending direct review. Mullins, 69
M.J. at 116. In light of Mangahas, the statute of limitations applicable to the
charged offense of rape in violation of Article 120, UCMJ, committed on or
about 25 August 2000 was five years. See Mangahas, 77 M.J. at 225. Therefore,
the statute of limitations in Appellant’s case expired in August 2005, more
than ten years before the charge and specification were preferred and delivered
to the summary court-martial convening authority in March 2016. Accord-
ingly, we must evaluate the events at trial in this light.
    R.C.M. 907(b)(2)(B) required the military judge to inform Appellant at trial
of Appellant’s apparent right to assert the statute of limitations defense to bar
the only charge and specification against him. See Salter, 20 M.J. at 117. The
military judge’s failure to do so, like trial defense counsel’s failure to assert the
defense, was understandable in light of the CAAF’s holding in Willenbring.
Nevertheless, applying the CAAF’s clear holding in Mangahas that the five-
year statute of limitations had long since run, the military judge’s failure to
comply with R.C.M. 907(b)(2)(B) was an error that was plain and obvious. 8 See
Girouard, 70 M.J. at 11. Moreover, the error was plainly materially prejudicial
to Appellant’s substantial rights because the statute of limitations was a com-
plete defense to the only charge and specification in the case. Id. Although the


8 Appellant contends the applicable standard of review is plain error. This is the stand-
ard the CAAF applied in both Mullins, 69 M.J. at 116, and Harcrow, 66 M.J. at 159.
Each of those cases dealt with changes to applicable precedent arising after trial but
during the course of direct appellate review, where the appellants had failed to make
evidentiary objections at trial. Mullins, 69 M.J. at 116–17 (applying United States v.
Brooks, 64 M.J. 325 (C.A.A.F. 2007)); Harcrow, 66 M.J. at 159 (applying Crawford v.
Washington, 541 U.S. 36 (2004)). Appellant’s case, in contrast, involves the military
judge’s failure to perform an affirmative duty imposed by R.C.M. 907(b)(2)(B), regard-
less of Appellant’s failure to raise the issue. It might be argued that the plain error
standard applicable to forfeited issues is inapposite, and that de novo is the appropri-
ate standard of review. However, we need not resolve this question because we agree
with Appellant that the military judge committed plain error in light of Mangahas.




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                    United States v. Collins, No. ACM 39296


statute of limitations is waivable, at oral argument the Government conceded
it could articulate no plausible reason why Appellant would have knowingly
waived the defense had he understood it was available in this contested trial.
Nor can we discern any such reason.
    The Government attempts to distinguish Mangahas on the basis that, in
that case, the accused moved to dismiss the charge and specification of rape
based on the statute of limitations in spite of Willenbring, whereas in the in-
stant case Appellant did not. The Government relies heavily on the United
States Supreme Court’s decision in Musacchio v. United States, 136 S. Ct. 709
(2016). In Musacchio, the petitioner failed to invoke the statute of limitations
bar in 18 U.S.C. § 3282(a) 9 at trial but attempted to do so on appeal. Id. at 713.
The Court first found the statute “provides a nonjurisdictional defense, not a
jurisdictional limit” on prosecution. Id. at 718. The Court then held:
       Because §3282(a) does not impose a jurisdictional limit, the fail-
       ure to raise it at or before trial means that it is reviewable on
       appeal—if at all—only for plain error. . . . We conclude, however,
       that a district court’s failure to enforce an unraised limitations
       defense under §3282(a) cannot be a plain error.
       ...
       When a defendant fails to press a limitations defense, the de-
       fense does not become part of the case and the Government does
       not otherwise have the burden of proving that it filed a timely
       indictment. When a defendant does not press the defense, then,
       there is no error for an appellate court to correct—and certainly
       no plain error.
       A defendant thus cannot successfully raise the statute-of-limita-
       tions defense in §3282(a) for the first time on appeal.
Id. The Government contends the statute of limitations in Article 43, UCMJ,
like that in 18 U.S.C. § 3282, is a nonjurisdictional, available defense that an
accused must assert in order to make it part of the case. The Government ar-
gues that, where an accused fails to assert the defense for any reason—includ-
ing, as in Appellant’s case, the apparent unavailability of the defense in light
of clear existing precedent—under Musacchio a plain error analysis is unnec-
essary because the defense is simply not “part of the case.”



9 18 U.S.C. § 3282(a) provides that “[e]xcept as otherwise expressly provided by law,
no person shall be prosecuted, tried, or punished for any offense, not capital, unless
the indictment is found or the information is instituted within five years next after
such offense shall have been committed.”


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                    United States v. Collins, No. ACM 39296


     The Government appears to essentially argue that Musacchio created a
new standard of review, or rather a standard of non-review, apparently unique
to statute of limitations jurisprudence. The Government does not argue Appel-
lant waived the statute of limitation bar, which involves the “intentional relin-
quishment or abandonment of a known right.” Ahern, 76 M.J. at 197. Indeed,
it is apparent that Appellant, like the military judge and other trial partici-
pants, was understandably unaware such a defense was available. See United
States v. Hoffmann, ___ M.J. ___, No. 18–0002/AR, 2018 CAAF LEXIS 226
(C.A.A.F. 7 May 2018) (mem.) (“[W]e do not construe the failure to object to
what was the settled law at the time as an intentional relinquishment of a
known right . . . .”) Similarly, the Government cannot prevail under the plain
error standard of review applicable to forfeited issues because the combination
of Mangahas, Mullins/Harcrow, R.C.M. 907(b)(2)(B), and Salter make it ap-
parent the military judge plainly erred by failing to inform Appellant at trial
that the statute had run on the charge of rape. However, the Government
seizes on the strong language in Musacchio that an unraised statute of limita-
tions defense does not become part of the case and cannot be successfully raised
on appeal to mean some principle other than waiver or forfeiture is at work.
We are not persuaded.
    To begin with, Musacchio may be distinguished from the instant case on
multiple grounds. Musacchio did not interpret Article 43, UCMJ, which gov-
erns trials by courts-martial; rather, it addressed the operation of 18 U.S.C. §
3282, applicable to civilian prosecutions. By design, the civilian and military
justice systems employ different rules of procedure. In particular, our superior
court has recognized “that Congress, in drafting Article 43, did not intend to
create, in sections (b) and (c), a mirror image of the rule then and now extant
in federal [civilian] law.” United States v. Tunnell, 23 M.J. 110, 113 (C.M.A.
1986). In addition, Musacchio did not address a situation where the statute of
limitations defense was apparently unavailable at the time of trial based on
clear existing precedent that was subsequently overruled during the pendency
of the appeal. It is not clear to us that the Court’s analysis would be the same
in such a situation. Furthermore, Musacchio did not address the affirmative
duty to bring the statutory bar to the attention of the accused imposed on the
trial judge by R.C.M. 907(b)(2)(B), which has no civilian equivalent.
    Even setting these distinctions aside, the Government misconstrues the
Court’s approach to the applicable standard of review in Musacchio. It is true
that, as the Government states, the Court expressly did not decide whether
Musacchio’s failure to raise the statute of limitations constituted waiver or for-
feiture. Musacchio, 136 S. Ct. at 718 n.3. However, this was not because it
found neither applied; it was because, even assuming a plain error standard of
review, the trial judge’s failure to raise 18 U.S.C. § 3282 sua sponte in a civilian
trial would never meet the criteria for relief under the plain error standard of

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                   United States v. Collins, No. ACM 39296


review. The Court found a defendant “cannot successfully raise the statute-of-
limitations defense in §3282(a) for the first time on appeal” not because plain
error was not the applicable standard of review, but by evaluating the alleged
error in light of the plain error standard and finding it could never be met. Id.
at 718.
    In light of the military judge’s affirmative obligation under R.C.M.
907(b)(2)(B) to raise the statute of limitations issue, Appellant’s situation is
clearly different. Again, there is no indication Appellant “intentionally relin-
quished” an available statute of limitations defense, and therefore waiver is
inapplicable. Ahern, 76 M.J. at 197. Under Mangahas, Mullins, R.C.M.
907(b)(2)(B), and Salter, the military judge was required to inform Appellant
the statutory bar was available, and she plainly erred to the material prejudice
of Appellant’s substantial rights by failing to do so. See Girouard, 70 M.J. at
11. Therefore, we cannot affirm the conviction.
   The Government advances a second argument, inspired by the CAAF’s re-
cent decision in United States v. Williams, ___ M.J. ___, No. 17–0285, 2018
CAAF LEXIS 365 (C.A.A.F. 27 Jun. 2018), to the effect that the 2006 amend-
ment to Article 43, UCMJ, retroactively applied to the August 2000 rape
charge, and therefore the statute of limitations never actually expired, Man-
gahas notwithstanding. In Williams, the CAAF set aside findings of guilty with
respect to four specifications of sexual offenses based upon an erroneous pro-
pensity instruction that was not harmless beyond a reasonable doubt. Wil-
liams, 2018 CAAF LEXIS 365, at *7–14; see United States v. Hills, 75 M.J. 350,
356 (C.A.A.F. 2016). Apparently, one set-aside specification alleged rape on di-
vers occasions between late 2000 and early 2003. Williams, 2018 CAAF LEXIS
365, at *3–4. In its decretal paragraph, the CAAF stated, inter alia:
       The record is returned to the Judge Advocate General of the
       Army with a rehearing as to the Specification of Charge I au-
       thorized to the extent that the charge and specification are not
       barred by the statute of limitations. See United States v. Man-
       gahas, 77 M.J. 220 (C.A.A.F. 2018); United States v. Grimes, 142
       F.3d 1342, 1351 (11th Cir. 1998) (recognizing that the federal
       circuits are in agreement “that extending a limitations period
       before the prosecution is barred does not violate the Ex Post
       Facto Clause”). But see United States v. Lopez de Victoria, 66




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                         United States v. Collins, No. ACM 39296


           M.J. 67, 73–74 (C.A.A.F. 2008) (holding that the 2003 amend-
           ment to Article 43, UCMJ, 10 U.S.C. § 843, 10 did not retroac-
           tively extend the statute of limitations due to statutory construc-
           tion).
Williams, 2018 CAAF LEXIS 365, at *15 (footnote inserted). In a footnote, the
CAAF commented “[t]he parties may address any potential retroactivity issues
concerning the statute of limitations on remand or at the rehearing.” Id. at *15
n.5.
    Taking its cue from Williams, the Government cites Grimes and a series of
other federal circuit decisions for the principle that extending the applicable
statute of limitations before the existing statute of limitations has expired on
a particular offense does not violate the Ex Post Facto Clause. 11 Grimes, 142
F.3d at 1351; see United States v. Taliaferro, 979 F.2d 1399, 1402 (10th Cir.
1992); United States v. Knipp, 963 F.2d 839, 843–44 (6th Cir. 1992); United
States v. Madia, 955 F.2d 538, 540 (8th Cir. 1992); United States v. Richardson,
512 F.2d 105, 106 (3d Cir. 1975); Clements v. United States, 266 F.2d 397, 398–
99 (9th Cir. 1959). The Government goes on to distinguish the 2003 amend-
ment to Article 43 addressed in Lopez de Victoria from the 2006 amendment
as a matter of statutory construction, and concludes the latter unlike the for-
mer was intended to apply to earlier offenses for which the statutory period
had not yet run.
    We acknowledge there is an unresolved question of whether and to what
extent the 2006 amendment to Article 43 extended the statute of limitations
period for rapes occurring within the five years preceding the amendment’s
effective date. One day this court may be called upon to address that question.
But today is not that day. It is unnecessary for us to reach those aspects of the
Government’s argument because the five-year statute of limitations on the Au-
gust 2000 rape charged in Appellant’s case did run before the 2006 amend-
ment.
   The Government attempts to address this manifest flaw in its position by
arguing that at the time of both the alleged offense in August 2000 and the
2006 amendment to Article 43, there was no statute of limitations for rape
under the existing precedent of Willenbring. The Government argues Man-
gahas did “not reach the question of retroactivity,” and that “[e]ven if Man-
gahas means that Willenbring is no longer good law in 2018, Willenbring was


10This change to Article 43, UCMJ, modified the statute of limitations with respect to
certain offenses against children and did not affect the statute of limitations applicable
to Appellant’s case. See Lopez de Victoria, 66 M.J. at 71.
11   U.S. CONST. art. I, § 9, cl. 3.


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                   United States v. Collins, No. ACM 39296


good law at the time of the 2006 amendment.” However, the Government fun-
damentally misconceives the import of the CAAF’s decision in Mangahas. The
meaning of Mangahas is that under Article 43, UCMJ, the statute of limita-
tions for rape in 1997, as well as in August 2000, was and always has been five
years. Any pronouncements to the contrary in Willenbring or elsewhere were
simply wrong. See Mangahas, 77 M.J. at 223–25. As discussed above, there
remains an open question as to whether rapes committed prior to but within
five years of the 2006 amendment were taken out of the statute of limitations.
However, the offense Appellant was charged with, unlike the specification at
issue in Williams, is entirely outside that window. See Williams, 2018 CAAF
LEXIS 365, at *3–4.
    If we were to accept the Government’s argument, the outcome of Mangahas
would appear nonsensical. There, the CAAF interpreted identical language in
Article 43, UCMJ, as applied in Appellant’s case. Finding Willenbring was
“badly-reasoned” and explicitly overruling its interpretation of Article 43, the
CAAF held the applicable statute of limitations for an alleged rape in 1997 was
five years, and dismissed the charge and specification. Mangahas, 77 M.J. at
223–25. The same reasoning applies to an alleged rape that occurred in August
2000. We are compelled to follow our superior court’s precedent and take sim-
ilar action.

                              III. CONCLUSION
     The findings of guilt and the sentence are SET ASIDE. The Charge and its
Specification are DISMISSED. Article 66(c), (d), UCMJ, 10 U.S.C. § 866(c),
(d).


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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