United States v. Private E2 URIEL RIVASCHIVAS ( 2015 )

                                  COOK, HAIGHT, and MAGGS 1
                                    Appellate Military Judges
                                 UNITED STATES, Appellee
                              Private E2 URIEL RIVASCHIVAS
                                United States Army, Appellant
                                        ARMY 20140471
                                     Headquarters, I Corps
                         Jeffery Lippert, Military Judge (arraignment)
                              Andrew Glass, Military Judge (trial)
                        Colonel William R. Martin, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick
    Gordon, JA; Captain Ryan T. Yoder, JA (on brief).
    For Appellee: Major A.G. Courie, III, JA; Major Daniel D. Derner, JA; Captain
    Timothy C. Donahue, JA (on brief).
                                           24 July 2015
                                     OPINION OF THE COURT
    HAIGHT, Judge:
           A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of desertion and false official statement, in violation of
    Articles 85 and 107, Uniform Code of Military Justice, 10 U.S.C. §§ 885 and 907
    (2006; 2012) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
    conduct discharge, confinement for three months, and reduction to the grade of E-1.
    The convening authority approved the adjudged sentence.
           This case is before us for review pursuant to Article 66, UCMJ. Appellant
    raises one assignment of error, which merits discussion but no relief.
        Judge MAGGS took final action in this case while on active duty.
    RIVASCHIVAS — ARMY 20140471
           Appellant was charged with deserting the U.S. Army in December 2007 and
    remaining in unauthorized absence until January 2014. Shortly after appellant’s
    return to Fort Lewis, Washington, charges were preferred against him on 28 January
    2014, received by the summary court-martial convening authority on that same day,
    and ultimately referred to trial on 10 April 2014. On 27 May 2014, appellant
    pleaded guilty by exceptions and substitutions to a desertion that terminated in
    February 2008. During the providence inquiry, appellant explained he originally
    “tried to come back into Army control” in February 2008 by turning himself in at
    Naval Station Great Lakes in Illinois but ultimately remained absent from the Army
    until his return to Fort Lewis in January 2014.
           Despite appellant being absent for more than six years, the government
    elected to not “prove up” the longer desertion as charged and let the conviction
    stand in accordance with the pleaded exceptions and substitutions. This decision to
    not go forward with the period of absence as charged did not affect the maximum
    potential punishment in this case, because the presidentially-set cap for the crime of
    desertion is not contingent on the duration of the absence. Appellant
    unconditionally waived his pretrial Article 32, UCMJ, hearing, pleaded guilty
    without benefit of a pretrial agreement, and did not enter into a stipulation of fact.
    Any potential bar to prosecution because of the statute of limitations was never
    mentioned or discussed.
           On appeal, appellant claims the military judge abused his discretion by
    accepting appellant’s guilty plea without a knowing and affirmative waiver of the
    statute of limitations. We disagree.
                                  LAW AND DISCUSSION
           Article 43(b)(1), UCMJ, states, “[e]xcept as otherwise provided in this section
    (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 specifications by an officer exercising summary court-martial jurisdiction over
    the command.” Because absence without leave (AWOL) and desertion are “not
    continuing offenses and are committed, respectively, on the day the person goes
    absent [or] deserts,” appellant is considered to have committed his crime of
    desertion when he first left in December 2007. Rule for Courts-Martial [hereinafter
    R.C.M.] 907 discussion; see also United States v. Tunnell, 
    23 M.J. 110
    , 111 (C.M.A.
    1986). However, “[w]hen computing the statute of limitations, periods in which the
    accused was . . . absent without leave or in desertion are excluded.” R.C.M. 907
    discussion; see also UCMJ art. 43(c).
          Appellant’s position is that when applying the dates to which appellant
    pleaded guilty as well as applying the obvious and proper exclusion of appellant’s
    RIVASCHIVAS — ARMY 20140471
    admitted period of unauthorized absence, the statute of limitations presumably
    barred prosecution of any charges received after February 2013—that is, five years
    after February 2008. Appellant’s charges were received by the summary court-
    martial convening authority on 28 January 2014, thereby stopping the running of the
    statute of limitations on that date, nearly a full year beyond when the Article
    43(b)(1) statute of limitations possibly expired. With that in mind, appellant
    highlights that he did not make an effective waiver of the period of limitation.
           The law is clear. In order “to waive the defense of the statute of limitations,
    the appellant must be personally aware of that right and must knowingly and
    affirmatively waive it on the record.” United States v. Brown, 
    30 M.J. 907
    , 909
    (A.C.M.R. 1990). Just how concrete the requirement is that any waiver of the
    statute of limitations be express and knowing has been detailed by our superior
                 Almost 28 years ago, we held that it was “well established
                 in military jurisprudence that whenever 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. We further held that we would not impose upon an
                 accused a waiver of the right to plead the statute of
                 limitations in bar of trial when the record does not
                 disclose that he was aware of that right. This principle of
                 open-court advisement was recognized in paragraph 68c of
                 the Manual for Courts-Martial, United States, 1951, and in
                 the 1969 Manual for Courts-Martial . . . see R.C.M.
                 907(b)(2)(B), Manual for Courts-Martial, United States,
                 1984. It was reaffirmed by this Court in United States v.
    6 M.J. 182
     (C.M.A. 1979), and even more
                 recently in United States v. Jackson, [
    20 M.J. 83
                 1985]. It is too well-established in military law to require
                 further elaboration here.
    United States v. Salter, 
    20 M.J. 116
    , 117 (C.M.A 1985) (internal citation omitted).
    Accordingly, appellant asserts that he could not have made an effective waiver
    because the military judge did not ascertain on the record if appellant knowingly and
    voluntarily waived the statute of limitations.
           We find the statute of limitations did not bar prosecution of appellant’s
    desertion. Generally, Article 43, UCMJ, imposes a 5-year time bar. However, a
    desertion or AWOL in time of war “may be tried and punished at any time without
    RIVASCHIVAS — ARMY 20140471
    limitation.” UCMJ art. 43(a). 2 Therefore, if December 2007, the date of appellant’s
    absence, was during a “time of war,” then the 5-year limitation did not apply, there
    was no bar to waive, and there would have been no requirement to discuss the issue
          Our sister court, the United States Coast Guard Court of Military Review,
    addressed this very issue with respect to an appellant who pleaded guilty to an
    unauthorized absence from 1968 to 1971, and the charges were received beyond the
    peace-time statute of limitations applicable at that time. United States v. Scott, 46
    C.M.R 541 (C.G.C.M.R. 1971). That court explained:
                    The bar of the statute of limitations may be waived so
                    long as the accused is aware of his right to assert it. A
                    plea of guilty, after explanation of its effect with respect
                    to the statute of limitations, operates as such a waiver. In
                    a proper case where the statute of limitations, if asserted,
                    would have barred trial, the military judge could not
                    accept a plea of guilty without questioning the accused
                    personally and satisfying himself that the accused
                    knowingly and understandingly desired to waive. It was
                    not necessary in the instant case for the military judge to
                    have questioned [appellant] on this point, however,
                    because the AWOL charged was, in contemplation of law,
                    an AWOL committed in time of war.
    Id. at 544 (internal citations omitted).
          We, likewise, find it was not necessary in this case for the military judge to
    discuss waiver of the statute of limitations with appellant as his admitted desertion
    in December 2007 was in a time of war—at least for purposes of Article 43, UCMJ.
          The full text of Article 43(a), UCMJ, reads, “A person charged with absence
    without leave or missing movement in time of war, with murder, rape, or rape of a
    child, or with any other offense punishable by death, may be tried and punished at
    any time without limitation.” We note that desertion is an aggravated AWOL as the
    first two elements of the charged crime of desertion are an “absence” and “without
    authority.” See UCMJ art. 85; see also United States v. Powell, 
    38 M.J. 153
    (C.M.A. 1993) (labeling a period for which desertion was charged as a “period of
    unauthorized absence”); United States v. Pou, 
    43 M.J. 778
    , 780 (A.F. Ct. Crim. App.
    1995) (ruling that a period of desertion qualifies as a period “in which the accused is
    absent without authority” for purposes of Article 43(c), UCMJ).
    RIVASCHIVAS — ARMY 20140471
           What constitutes a “time of war” for purposes of the statute of limitations as
    outlined in Article 43, UCMJ, is not a novel question. Our superior court, in a case
    involving a soldier who went AWOL within the continental United States at the end
    of 1950, explained that the analysis of “time of war” for purposes of the statute of
    limitations required an approach of “practicality, of broad realism, as distinguished
    from narrow legalism” and concluded that the hostilities in Korea at that time
    constituted a time of war and consequently “no limitation applie[d] to unauthorized
    absences.” United States v. Ayers, 4 U.S.C.M.A. 220, 222, 227, 
    15 C.M.R. 220
    , 222,
    227 (1954). Similarly, the same court, in a case of a soldier who deserted his unit at
    Fort Polk in 1964, concluded that “[t]he current military involvement of the United
    States in Vietnam undoubtedly constitutes a ‘time of war’ in that area, within the
    meaning of Article 43’s suspension of the running of the statute of limitations.”
    United States v. Anderson, 17 U.S.C.M.A. 588, 589, 
    38 C.M.R. 386
    , 387 (1968). 3
           When determining whether the country is engaged in a de facto war, as
    opposed to a formally declared or de jure war, appellate courts have looked to
    factors such as:
                 [1] the nature of the conflict; [2] the manner in which it is
                 carried on; [3] the movement to and presence of large
                 numbers of personnel on the battlefield; [4] the casualties
                 involved; [5] the sacrifices required; [6] the drafting of
                 recruits to maintain a large number of personnel in the
                 military service; [7] national emergency legislation
                 enacted and being enacted; [8] executive orders
                 promulgated; and [9] the expenditure of large sums to
                 maintain armed forces in the theater of operations.
    United States v. Castillo, 
    34 M.J. 1160
    , 1162-64 (N.M.C.M.R. 1992) (citing United
    States v. Bancroft, 3 U.S.C.M.A. 3, 5, 
    11 C.M.R. 3
    , 5 (1953)).
           Like the Court of Military Appeals in 1953, we rely on “[a] reading of the
    daily newspaper accounts of the conflict in [Iraq and Afghanistan]; an appreciation
    of the size of the forces involved; a recognition of the efforts, both military and
    civilian, being expended to maintain the military operations in that area; and
    knowledge of other well-publicized wartime activities” to convince us “beyond any
    reasonable doubt that we [were] in a highly developed state of war” in 2007.
      The Court of Military Appeals held in United States v. Averette, 19 U.S.C.M.A.
    41 C.M.R. 363
     (C.M.A. 1970), that the phrase “in time of war” for
    jurisdictional purposes under Article 2, UCMJ, applied only to a war declared by
    Congress and that the phrase therefore did not cover the conflict in Vietnam. But,
    the court in Averette did not overrule Anderson. Instead, the court distinguished
    Anderson based on differences between Article 43 and Article 2. Id. at 365, 41
    C.M.R. at 365. Therefore, the analysis in Anderson continues to apply.
    RIVASCHIVAS — ARMY 20140471
    Bancroft, 3 U.S.C.M.A at 5-6, 11 C.M.R. at 5-6. Furthermore, we note historical
    facts such as the Iraq War troop surge of 2007, the continuous and multiple large-
    scale deployments to both Iraq and Afghanistan of combat units going back to 2003,
    the well-documented number of combat fatalities and injuries in that theater of
    operations during those campaigns, the tremendous financial cost of our ongoing
    military conflicts in the Middle East, the various legislative enactments and
    executive orders detailing our wartime footing in Iraq and Afghanistan, the creation
    of military commissions with the purpose of prosecuting violations of the law of
    war, and judicial decisions such as Hamdi v. Rumsfeld, 
    542 U.S. 507
     (2004). The
    above is a non-exhaustive list which compels us to hold that appellant deserted the
    U.S. Army in a time of war for purposes of the statute of limitations under Article
    43, UCMJ. 4
           Because no time limitation applied to appellant’s war-time desertion, there
    was no bar to trial to waive, and consequently no inquiry regarding the statute of
    limitations was necessary. Although we need not decide here if appellant’s pleading
    by exception and substitution to a much shorter period of unauthorized absence
    would have successfully implicated a bar to trial if the peace-time limitation had
    been applicable, we remind military judges and practitioners alike to remain
    cognizant of Article 43, UCMJ, along with its attendant exceptions, extensions,
    suspensions, and tolling provisions. See R.C.M. 920(e)(2) (Instructions on findings
    shall include “[a] description of the elements of each lesser included offense in issue
    unless trial of a lesser included offense is barred by the statute of limitations
    (Article 43, UCMJ) and the accused refuses to waive the bar.”); United States v.
    Wiedemann, 16 U.S.C.M.A. 365, 370, 36 C.M.R 521, 526 (1966) (“[I]f the accused
    pleads guilty to a lesser included offense against which the statute has apparently
    run, the law officer will advise him of his right to interpose the statute in bar of trial
    and punishment as to that offense.”); Tunnell, 
    23 M.J. 110
    ; see also United States v.
    59 M.J. 432
    , 439 (C.A.A.F. 2004) (“When the evidence reasonably raises
    issues concerning a lesser-included offense or the statute of limitations, the military
    judge is charged with specific affirmative responsibilities.”).
          The findings of guilty and the sentence are AFFIRMED.
      We acknowledge that several federal courts have concluded that the hostilities in
    Iraq and Afghanistan, during the relevant time period, constituted a time of war for
    purposes of the wartime suspension of limitations codified at 18 U.S.C. § 3287. See,
    e.g., United States v. Frediani, 
    2015 U.S. App. LEXIS 10449
     (11th Cir. 2015);
    United States ex rel. Carter v. Halliburton Co., 
    710 F.3d 171
     (4th Cir. 2013), aff.d
    in part, rev’d in part sub nom. Kellogg Brown & Root Servs. v. United States ex rel.
    Carter, 2015 U.S. LEXIS 3407, 
    135 S. Ct. 1970
     (2015); United States v. Pfluger, 
    685 F.3d 481
     (5th Cir. 2012).
    RIVASCHIVAS — ARMY 20140471
        Senior Judge COOK and Judge MAGGS concur.
                                   FOR  THECOURT:
                                    MALCOLM H. SQUIRES, JR.
                                   MALCOLM      H. SQUIRES, JR.
                                    Clerk of Court
                                   Clerk of Court

Document Info

DocketNumber: ARMY 20140471

Filed Date: 7/24/2015

Precedential Status: Precedential

Modified Date: 7/27/2015