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Saturday, September 03, 2005
CAN'T GET AWAY FROM THAT PESKY STATUTE OF LIMITATIONS
As the end of the term nears, C.A.A.F. is releasing opinions faster than I can keep up. On August 25, the court released its opinion in U.S. v. Rollins, No. 04-313. At the time the case was decided, there was a five year statute of limitations for "indecent acts", a lesser included offense of rape. There was no such limitation on rape or attempted rape.
The members found Rollins not guilty of 2 counts of attempted rape, but guilty of the lesser-included indecent acts offenses. The trouble is, he was convicted of indecent acts "on divers occasions" between 1989 and 1995 in one specification, 1989 and 1987 in the other. Any activity before 1995 was excluded by the five year statute of limitations.
The military judge, relying on a previous AFCCA case, assumed that the SOL for indecent acts had been extended. After trial, but before the convening authority acted, CAAF overruled that AFCCA case (see U.S. v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000)). So the five year SOL applied. What to do?
The convening authority, on the advice of his staff judge advocate, modified the findings so that they now read guilty of indecent acts on divers occasions in 1995, and between 2995-1997. (So the specifications only referred to time periods within the SOL). But given the form of the verdict, we don’t know whether the members believed beyond a reasonable doubt that indecent acts were committed during those periods.
One more issue was addressed: ATTENTION active-duty servicemen and servicewomen: you do not have a First Amendment right to give pornography to a minor in a public place so that you might mutually [aggrandize] yourselves.
It's now five years later. Who knows if the witnesses are still available, and can testify to specific instances during those limited periods. The statute of limitations for indecent acts has been changed, so this exact situation is unlikely to arise again. Furthermore, the MJ was following AFCCA precedent, so it seems like he was doing his job. If anyone could have avoided this situation, it was the government. If you’ve got the goods (evidence) for specific instances, why bother with “divers occasions”?
I’d be happy to hear from any trial counsel who can explain it to me.
Categories: CAAF, Appellate
The members found Rollins not guilty of 2 counts of attempted rape, but guilty of the lesser-included indecent acts offenses. The trouble is, he was convicted of indecent acts "on divers occasions" between 1989 and 1995 in one specification, 1989 and 1987 in the other. Any activity before 1995 was excluded by the five year statute of limitations.
The military judge, relying on a previous AFCCA case, assumed that the SOL for indecent acts had been extended. After trial, but before the convening authority acted, CAAF overruled that AFCCA case (see U.S. v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000)). So the five year SOL applied. What to do?
The convening authority, on the advice of his staff judge advocate, modified the findings so that they now read guilty of indecent acts on divers occasions in 1995, and between 2995-1997. (So the specifications only referred to time periods within the SOL). But given the form of the verdict, we don’t know whether the members believed beyond a reasonable doubt that indecent acts were committed during those periods.
One more issue was addressed: ATTENTION active-duty servicemen and servicewomen: you do not have a First Amendment right to give pornography to a minor in a public place so that you might mutually [aggrandize] yourselves.
It's now five years later. Who knows if the witnesses are still available, and can testify to specific instances during those limited periods. The statute of limitations for indecent acts has been changed, so this exact situation is unlikely to arise again. Furthermore, the MJ was following AFCCA precedent, so it seems like he was doing his job. If anyone could have avoided this situation, it was the government. If you’ve got the goods (evidence) for specific instances, why bother with “divers occasions”?
I’d be happy to hear from any trial counsel who can explain it to me.
Categories: CAAF, Appellate
