United States v. Adams ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Thomas M. ADAMS, Sergeant
United States Army, Appellant
No. 20-0366
Crim. App. No. 20130693
Argued April 21, 2021—Decided September 9, 2021
Military Judge: J. Harper Cook and Jeffery R. Nance
For Appellant: Frank J. Spinner, Esq. (argued); Major Alex-
ander N. Hess (on brief); Captain Lauren M. Teel.
For Appellee: Captain Thomas J. Darmofal (argued); Colo-
nel Steven P. Haight, Lieutenant Colonel Wayne H. Wil-
liams, and Major Dustin B. Myrie (on brief).
Judge HARDY delivered the opinion of the Court, in
which Judge MAGGS and Senior Judge STUCKY joined.
Chief Judge OHLSON filed a dissenting opinion in which
Judge SPARKS joined.
_______________
Judge HARDY delivered the opinion of the Court.
This case, like United States v. McPherson, __ M.J. __
(C.A.A.F. 2021), requires us to decide whether Appellant’s
prosecution for certain offenses was time-barred by the stat-
ute of limitations provision in the 2016 version of Article
43(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 843(b)(1) (2012 & Supp. IV 2013–2017). Pursuant to the
Court’s decision in McPherson, we hold that the statute of lim-
itations had expired for Appellant’s charged offenses under
Articles 125 and 134, UCMJ, 10 U.S.C. §§ 925, 934 (2000).
This case differs slightly from McPherson, however,
because the Government originally charged Appellant in
2012, years before Congress passed the 2016 amendments to
Article 43(b), UCMJ, which retroactively shortened the
relevant statute of limitations. But the 2012 charges, which
United States v. Adams, No. 20-0366/AR
Opinion of the Court
would normally be immune from reductions to the statute of
limitations after charges were brought, are not the charges
that Appellant faces today. Instead, in 2017, the Government
dismissed the original 2012 charges against Appellant and re-
preferred new charges for the same offenses. The Government
argues that even though the statute of limitations has expired
for the re-preferred 2017 charges, those charges are not time-
barred because the savings clause in Article 43(g), UCMJ, 10
U.S.C. § 843(g) (2012 & Supp. IV 2013–2017), tolled the
statute of limitations after the original charges were
dismissed and re-preferred. We disagree.
The savings clause in Article 43(g), UCMJ, does not apply
to this case. By its plain text, Article 43(g), UCMJ, only ap-
plies when the original charges or specifications were “dis-
missed as defective or insufficient for any cause.” We find no
evidence that the original charges were dismissed because of
a defect or insufficiency, and therefore hold that the savings
clause in Article 43(g), UCMJ, is inapplicable. Because we be-
lieve that the error in this case was clear and prejudiced Ap-
pellant’s substantial rights, we reverse in part the decision of
the United States Army Court of Criminal Appeals (ACCA).
I. Background
In 2013, a panel of officers with enlisted representation,
sitting as a general court-martial, convicted Appellant, con-
trary to his pleas, of numerous sexual offenses against two
minors.1 United States v. Adams, No. ARMY 20130693, 2017
1 At his original court-martial, Appellant was convicted of one
specification of carnal knowledge, two specifications of sodomy with
a child, and seven specifications of indecent liberties with a child,
in violation of Articles 120, 125, and 134, UCMJ, 10 U.S.C. §§ 920,
925, 934 (2000). Appellant was also convicted of offenses charged
under the 2006 version of the UCMJ, including two specifications
of aggravated sexual assault of a child, one specification each of ag-
gravated sexual abuse of a child, indecent liberties with a child,
rape of a child, and indecent conduct with a child, two specifications
each of aggravated sexual contact with a child, producing child por-
nography, possessing child pornography, and possessing child erot-
ica, in violation of Articles 120, 125, and 134, UCMJ, 10 U.S.C.
§§ 920, 925, 934 (2006). United States v. Adams, No. ARMY
2
United States v. Adams, No. 20-0366/AR
Opinion of the Court
CCA LEXIS 6, at *1–2, 2017 WL 76915, at *1 (A. Ct. Crim.
App. Jan 6, 2017) (summary disposition) (unpublished). The
panel sentenced Appellant to confinement for life with the
possibility of parole, reduction to E-1, forfeiture of all pay and
allowances, and a dishonorable discharge. Id. The convening
authority approved all findings, except for Appellant’s convic-
tion for child erotica, and approved the sentence. Id.On January 6, 2017, the ACCA set aside the findings of
guilt and sentence and authorized a rehearing in light of this
Court’s decision in United States v. Hills, 75 M.J. 350(C.A.A.F. 2016).2 Adams, 2017 CCA LEXIS 6, at *8, 2017 WL
76915, at *3. On May 11 and August 3, 2017, after the ACCA
set aside the original findings and sentence, the Government
preferred a new charge sheet. The new charge sheet included
numerous charges that were identical, or nearly identical, to
the charges originally filed against Appellant in 2012, plus
some entirely new charges. As explained below, only five of
the 2017 charges are relevant to this appeal.
On August 4, 2017, the convening authority dismissed the
original 2012 charges and referred the 2017 charges to a
general court-martial. Of the new 2017 charges, four are
relevant to the Article 43(g) savings clause issue posed in this
case: Specifications 2, 3, and 4 of Charge II for indecent
liberties with a child under Article 134, UCMJ (2000); and
Specification 1 of Charge IV for sodomy with a child under the
age of twelve under Article 125, UCMJ (2000).3 The fifth
20130693, 2017 CCA LEXIS 6, at *1–2, 2017 WL 76915, at *1 (A.
Ct. Crim. App. Jan. 6, 2017) (summary disposition) (unpublished).
2 In Hills, we held that it is constitutional error for a military
judge to use Military Rule of Evidence (M.R.E.) 413 to admit evi-
dence of “charged conduct to which an accused has pleaded not
guilty in order to show a propensity to commit the very same
charged conduct.” 75 M.J. at 354. Subsequently, in United States v.
Bonilla, the ACCA extended the Hills ruling to include propensity
evidence admitted under M.R.E. 414. No. ARMY 20131084, 2016
CCA LEXIS 590, at *22–23, 2016 WL 5682541, at *8 (A. Ct. Crim.
App. Sept. 30, 2016) (unpublished), aff’d 76 M.J. 335 (C.A.A.F.
2017) (summary disposition).
3 The full text of these four charges is included at the end of this
opinion in Appendix 1. The differences between the 2017 charges
3
United States v. Adams, No. 20-0366/AR
Opinion of the Court
charge, Specification 5 of Charge II, is also implicated in this
appeal. But, because that specification was preferred for the
first time in 2017, it is relevant only to the statute of
limitations question.
The 2017 charges were not based on any new conduct. The
trial counsel explained to the military judge that the 2012
charges were dismissed because the “date ranges which were
reflected on the 2017 charge sheet more accurately reflect the
misconduct committed by the accused.” However, none of the
specifications at issue in this case changed in any material
way, and the dates in all four specifications are exactly the
same. As trial counsel clarified in a supplemental pleading,
Specifications 2, 3, and 4 of Charge II were “the same as those
which were preferred . . . in 2012 minus some minor crafting
differences,” and Specification 1 of Charge IV was a “verbatim
recitation of Charge III, Specification 1 from [the] 2012
[charge sheet].”4
On various dates between September 8, 2017, and Novem-
ber 6, 2018, a military judge sitting as a general court-martial
convicted Appellant, contrary to his pleas, of one specification
of aggravated sexual assault of a child, six specifications of
indecent liberties with a child, one specification of indecent
acts with a child, one specification of production of child por-
nography, one specification of sodomy with a child, one speci-
fication of aggravated sexual abuse of a child, and one speci-
fication of abusive sexual contact with a child, in violation of
Articles 120, 125, and 134, UCMJ. The military judge sen-
tenced Appellant to confinement for forty-three years, reduc-
tion in grade to E-1, forfeiture of all pay and allowances, and
a dishonorable discharge. The convening authority approved
the adjudged sentence.
and the corresponding 2012 charges are shown in bold, with the
deleted text struck out and the new text underlined.
4 Although trial counsel stated that Specification 1 of Charge IV
was a verbatim recitation of the corresponding 2012 specification,
the two specifications actually differ slightly. The 2017 specification
includes Appellant’s rank, and the words “on divers occasions”
moved from the end to the beginning of the list of specified dates.
See Appendix 1.
4
United States v. Adams, No. 20-0366/AR
Opinion of the Court
On appeal to the ACCA, Appellant argued that his court-
martial for the specifications at issue in this appeal was
timed-barred by statute of limitations. United States v. Ad-
ams, No. ARMY 20130693, 2020 CCA LEXIS 232, at *9, 2020
WL 4001871, at *5–6 (A. Ct. Crim. App. July 13, 2020) (un-
published). The ACCA disagreed. Although the ACCA noted
that the relevant statutory text “does not appear ambiguous,”
the ACCA invoked “common sense” and declined to follow the
text because to do so would lead “to an absurd and unintended
result.” Id. at *14, 2020 WL 4001871, at *8. The ACCA also
held that, even if Congress did reduce the relevant statute of
limitations in 2016, the savings clause in Article 43(g),
UCMJ, applied because the Government made “slight
changes” to the charge sheet prior to re-preferring charges
against Appellant in 2017. Id. at *10 n.14, 2020 WL 4001871,
at *6 n.14. The ACCA held that the “slight differences” fit
within the statute’s allowance for saving otherwise time-
barred charges if they were dismissed as “defective or insuffi-
cient for any cause.” Id.We granted review to decide:
Whether the 2016 amendments to Article 43, UCMJ,
retroactively made the statute of limitations five
years for indecent liberties and sodomy offenses
charged under Articles 134 and 125, UCMJ,
respectively.
United States v. Adams, 80 M.J. 461 (C.A.A.F. 2020) (order
granting review).
II. Standard of Review
Deciding whether a statute of limitations has expired is a
question of law that we review de novo. United States v. Lopez
de Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008). When the statute
of limitations issue is not raised at trial, we also review for
plain error. McPherson, __ M.J. at __ (6) (citing United States
v. Briggs, 78 M.J. 289, 295 (C.A.A.F. 2019), rev’d on other
grounds, 141 S. Ct. 467 (2020)). To establish plain error, ap-
pellant must demonstrate “(1) error that is (2) clear or obvious
and (3) results in material prejudice to his substantial rights.”
United States v. Armstrong, 77 M.J. 465, 469 (C.A.A.F. 2018)
(internal quotation marks omitted) (citation omitted).
5
United States v. Adams, No. 20-0366/AR
Opinion of the Court
III. Discussion
Resolution of the issue presented in this case requires us
to answer three questions. First, whether Congress’s 2016
amendments to Article 43, UCMJ, reduced the statute of lim-
itations for the offenses challenged by Appellant in this ap-
peal—indecent liberties charged under Article 134, UCMJ,
and sodomy charged under Article 125, UCMJ—to five years.
Second, if so, whether the savings clause in Article 43(g),
UCMJ, prevents those offenses from being time-barred by the
reduced statute of limitations. And finally, if not, whether Ap-
pellant established plain error.
A. Statute of Limitations
In McPherson, which was argued the same day as this
case, the Court thoroughly examined and decided the first
question, and we adopt in whole the holding and reasoning of
that decision. As the Court explained, we cannot ignore the
plain text of the applicable version of Article 43(b), UCMJ,
merely because the Government argues that to do so would
go against Congress’s apparent contrary intentions in enact-
ing that provision or because doing so produces an undesira-
ble result. __ M.J. at __ (1). Thus, consistent with the plain
text of Article 43(b), UCMJ, as amended in 2016, the statute
of limitations for Appellant’s challenged charges under Arti-
cles 125 and 134, UCMJ, was five years. Pursuant to our hold-
ing in McPherson, we hold that Specification 5, Charge II,
which was filed for the first time in 2017, not 2012, was time-
barred by the plain text of the 2016 amended version of Arti-
cle 43(b), UCMJ.
B. Savings Clause
The next question is whether the savings clause in Article
43(g), UCMJ, applies in this case and prevents the five-year
statute of limitations from barring Appellant’s challenged
charges. Under Article 43(g), UCMJ:
If charges or specifications are dismissed as defec-
tive or insufficient for any cause and the period pre-
scribed by the applicable statute of limitations . . .
has expired, . . . trial and punishment under new
charges and specifications are not barred by the stat-
ute of limitations . . . .
6
United States v. Adams, No. 20-0366/AR
Opinion of the Court
As noted above, for Appellant’s challenged offenses under Ar-
ticles 125 and 134, UCMJ, “the period prescribed by the ap-
plicable statute of limitations . . . has expired.” Article 43(g),
UCMJ. Thus, for Article 43(g), UCMJ, to permit trial and
punishment under new charges and specifications, the origi-
nal charges must have been “dismissed as defective or insuf-
ficient for any cause.”
In its brief before this Court, the Government offered no
explanation for how or why the original dismissed charges
were “defective or insufficient.” Apparently, the Government
believed that because Article 43(g), UCMJ, requires that the
original charges be “dismissed as defective or insufficient for
any cause” (emphasis added), no explanation is required. The
Government suggests it is simply enough that the charges
were dismissed. We disagree.
The Government’s approach would effectively strike the
words “as defective or insufficient” from the statute. In the
Government’s view, Article 43(g)’s savings clause should ap-
ply whenever “charges or specifications are dismissed . . . for
any cause,” and the provision’s other requirements are satis-
fied. It is a “cardinal principle of statutory construction that
courts must give effect, if possible, to every clause and word
of a statute.” Williams v. Taylor, 529 U.S. 362, 404 (2000).
Thus, the Supreme Court has repeatedly held that courts are
“obliged to give effect, if possible, to every word Congress
used.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 632,
(2018) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339
(1979)); see also, e.g., Kawasaki Kisen Kaisha Ltd. v. Regal-
Beloit Corp., 561 U.S. 89, 105 (2010) (same); Carcieri v. Sala-
zar, 555 U.S. 379, 391 (2009) (same); Connecticut Dep’t of In-
come Maint. v. Heckler, 471 U.S. 524, 530 (1985) (same);
United States v. Menasche, 348 U.S. 528, 538–39 (1955)
(same); Inhabitants of Twp. of Montclair v. Ramsdell, 107
U.S. 147, 152 (1883) (same); Market Co. v. Hoffman, 101 U.S.
112, 115 (1879) (same). Because the Government’s argument
would render superfluous the words “as defective or insuffi-
cient” in Article 43(g), we cannot accept its suggested inter-
pretation of that provision.
Instead, we believe that for the savings clause in Article
43(g) to apply, the original charges must have been dismissed
because they were “defective or insufficient” in some manner.
7
United States v. Adams, No. 20-0366/AR
Opinion of the Court
When pushed at oral argument to explain how the dismissed
charges were “defective or insufficient,” the Government ad-
mitted that the changes made to the date ranges between the
original 2012 charges and the 2017 charges were “minor,” but
maintained that the 2012 charges were defective or insuffi-
cient “to the extent that the date ranges were not correct.”
Oral Argument at 29:10, United States v. Adams, No. 20-0366
(C.A.A.F. April 21, 2021). We find no evidence that the dis-
missed charges suffered from any defect or insufficiency in
their dates, or otherwise.
As noted above, the Government stated before the military
judge that the original 2012 charges were dismissed because
the “date ranges which were reflected on the 2017 charge
sheet more accurately reflect[ed] the misconduct committed
by the accused.” As Appellant correctly points out, however,
none of the date ranges of the specifications at issue in this
appeal were edited. The Government’s argument appears to
be based on the fact that in each of the new 2017 specifica-
tions at issue in this appeal the date “3 May 2005” was ini-
tially replaced with “30 May 2005” in the list of occasions
when the misconduct allegedly occurred. But that lone differ-
ence appears to have been a typo that the Government fixed
when it amended the 2017 charge sheet to make the dates in
the as-amended specifications identical to the corresponding
2012 specifications. Given that the dates in the 2012 specifi-
cations and the as-amended 2017 specifications are exactly
the same, we cannot accept the Government’s argument that
the charges were dismissed and re-preferred to “more accu-
rately reflect the misconduct committed by the accused.”
We also note that although the date ranges of the relevant
2017 specifications are identical to the 2012 specifications,
the Government did make other minor changes to the specifi-
cations, as shown in Appendix 1. However, the Government
has never argued, or even suggested, either before the mili-
tary judge or before this Court that those other changes were
intended to address any defect or insufficiency in the original
2012 specifications. To the contrary, in its supplemental filing
before the military judge, the Government described the
changes as “minor crafting differences,” and reassured the
military judge “that these charges and specifications are ex-
8
United States v. Adams, No. 20-0366/AR
Opinion of the Court
actly the same” as the corresponding 2012 charges. Govern-
ment Supplemental Pleading Relating Charges from 2012
and 2017 at 2, United States v. Adams (Third Judicial Dis-
trict, U.S. Army Sept. 13, 2017) (emphasis added).
In light of the Government’s own statements about the
2017 specifications and the fact that no changes were made
to the date ranges of the four specifications at issue here (the
Government’s purported reason for the dismissal of the origi-
nal charges), we do not believe that the 2012 specifications
were “dismissed as defective or insufficient for any cause.” Ac-
cordingly, Article 43(g), UCMJ, does not apply to save the
time-barred charges.
C. 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.” Armstrong, 77 M.J. at 469 (in-
ternal quotation marks omitted) (citation omitted). The Gov-
ernment argues that Appellant has not shown that any error
was clear or obvious because neither party made “any men-
tion of a potential statute of limitations issue” at either the
court-martial or CCA stages. The Court rejected similar rea-
soning in McPherson, and we do the same here. McPherson,
__ M.J. at __ (17). As we noted in McPherson, a plain reading
of the 2016 version of Article 43(b), UCMJ, requires us to hold
that the statute of limitations for the charges under Articles
125 and 134, UCMJ, was five years. We have no doubt that
Appellant would have raised this issue as a defense at court-
martial if he were properly advised of the issue by the mili-
tary judge, as required by Rules for Courts-Martial (R.C.M.)
907(b)(2)(B). As such, the error in this case was clear and prej-
udiced Appellant’s defense.
IV. Conclusion
The decision of the United States Army Court of Criminal
Appeals is reversed as to Charge II and Specifications 2, 3, 4,
and 5 thereunder, as to Charge IV and Specification 1 there-
under, and as to the sentence. The findings of guilty as to
those charges and specifications are set aside, and those
charges and specifications are dismissed. The remaining find-
ings are affirmed. The record is returned to the Judge Advo-
cate General of the Army for remand to the Army Court of
9
United States v. Adams, No. 20-0366/AR
Opinion of the Court
Criminal Appeals. That court may either reassess the sen-
tence based on the affirmed findings, or it may order a rehear-
ing on the sentence. See United States v. Winckelmann, 73
M.J. 11 (C.A.A.F. 2013); United States v. Sales, 22 M.J. 305(C.M.A. 1986).
10
United States v. Adams, No. 20-0366/AR
Opinion of the Court
Appendix 1
The full text of the four offenses at issue in this appeal appear be-
low. These offenses were originally charged against Appellant on
September 11, 2012, were re-preferred on August 11, 2017, and
were amended on September 8, 2017. The differences between the
original 2012 charges and the final 2017 as-amended charges are
shown below in bold. Text deleted from the original 2012 specifica-
tions is struck-through, and new text added to the new 2017 speci-
fications is underlined.
2017 Charge II, Specification 2 (formerly 2012 Charge
II, Specification 3):
In that Sergeant Thomas M. Adams, (E-5), U.S. Army,
did, at or near Fort Riley, Kansas, on divers occa-
sions between on or about 1 December 2003 and on or
about 15 December 2003, and between on or about 27
March 2004 and on or about 1 February 2005, and be-
tween on or about 18 April 2005 and on or about 3 May
2005, on divers occasions take indecent liberties
with [the victim], a female under the age of 16 years
of age, not the wife of the said Sergeant Adams ac-
cused, by directing causing her to touch her own
genitalia and by causing her to penetrate her own gen-
ital opening with her own hand or and finger, with
intent to arouse or and gratify the lust or the sexual
desires of the said Sergeant Adams, accused, such
conduct being prejudicial to the prejudice of good
order and discipline in the armed forces and being of
a nature to bring discredit upon the armed forces.
2017 Charge II, Specification 3 (formerly 2012 Charge
II, Specification 4):
In that Sergeant Thomas M. Adams, (E-5), U.S. Army,
did, at or near Fort Riley, Kansas, on divers occa-
sions between on or about 1 December 2003 and on or
about 15 December 2003, and between on or about 27
March 2004 and on or about 1 February 2005, and be-
tween on or about 18 April 2005 and on or about 3 May
2005, on divers occasions take indecent liberties
with [the victim], a female under the age of 16 years,
of age, not the wife of the said Sergeant Adams, ac-
cused, by causing her to touch her own genital open-
ing with instruments designed for sexual stimulation,
with intent to arouse or and gratify the lust or sexual
desires of the said Sergeant Adams accused, such
11
United States v. Adams, No. 20-0366/AR
Opinion of the Court
conduct being prejudicial to the prejudice of the
good order and discipline in the armed forces and be-
ing of a nature to bring discredit upon the armed
forces.
2017 Charge II, Specification 4 (formerly 2012 Charge
II, Specification 6):
In that Sergeant Thomas M. Adams, (E-5), U.S. Army,
did, at or near Fort Riley, Kansas, between on or about
1 December 2003, and on or about 15 December 2003,
and between on or about 27 March 2004 and on or
about 1 February 2005, or and between on or about
18 April 2005 and on or about 3 May 2005, take inde-
cent liberties with [the victim], a female under the
age of 16 years, of age, not the wife of the said Ser-
geant Adams, accused, by inviting [the victim] to
touch his penis and stating “feel this”, or words to
that effect, with intent to arouse or and gratify the
lust or sexual desires of the said Sergeant Adams,
accused, such conduct being prejudicial to the
prejudice of the good order and discipline in the
armed forces and being of a nature to bring discredit
upon the armed forces.
2017 Charge IV, Specification 1 (formerly 2012 Charge
III, Specification 1):
In that Sergeant Thomas M. Adams, (E-5), U.S. Army,
did, at or near Fort Riley, Kansas, on divers occa-
sions between on or about 27 March 2004 and on or
about 1 February 2005 and between on or about 18
April 2005 and on or about 3 May 2005, on divers oc-
casions commit sodomy with [the victim], a child un-
der the age of 12.
12
United States v. Adams, No. 20-0366/AR
Chief Judge OHLSON, with whom Judge Sparks joins,
dissenting.
Consistent with my analysis in United States v. McPher-
son, I would hold that the prosecution of Appellant for sex-
ually abusing his young stepdaughter was timely. See __ M.J.
__, __ – __ (1–16) (C.A.A.F. 2021) (Ohlson, C.J., with whom
Sparks, J., joined, dissenting). I would therefore affirm Appel-
lant’s convictions on all specifications of indecent liberties
with a child and sodomy with a child which are at issue here.
Because the majority holds otherwise, I respectfully dissent.1
1 I agree with the majority that the savings clause of Article
43(g), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 843(g),
is inapplicable in this case.