United States v. Lopez de Victoria , 66 M.J. 67 ( 2008 )

UNITED STATES, Appellee
v.
Eric LOPEZ de VICTORIA, Sergeant
U.S. Army, Appellant
No. 07-6004
Crim. App. No. 20061248
United States Court of Appeals for the Armed Forces
Argued November 14, 2007
Decided February 26, 2008
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, J., joined. RYAN, J., filed a dissenting
opinion in which ERDMANN, J., joined.
Counsel
For Appellant: Captain Nathan J. Bankson (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Teresa L. Raymond (on brief); Major Fansu Ku.
For Appellee: Captain James P. Leary (argued); Colonel John W.
Miller II, Lieutenant Colonel Steven P. Haight, and Captain
Larry W. Downend (on brief).
Amicus Curiae for Appellee: Colonel Gerald R. Bruce and Major
Matthew S. Ward (on brief).
Amicus Curiae: Captain Timothy M. Cox and Captain Anthony D.
Ortiz (on brief).
Military Judge: Richard J. Anderson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lopez de Victoria, No. 07-6004/AR
Judge STUCKY delivered the opinion of the Court.
We granted review in this case to consider whether the
November 2003 amendment to the statute of limitations, Article
43(b), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
843(b) (2000), applies retroactively to offenses committed
before the amendment’s effective date. The Court specified an
additional issue: whether this Court has statutory authority to
exercise jurisdiction over decisions of the courts of criminal
appeals rendered pursuant to Article 62, UCMJ, 10 U.S.C. § 862(2000). We answer the specified issue as to our jurisdiction in
the affirmative, but reverse the Court of Criminal Appeals on
the merits.
I.
Officer and enlisted court members convicted Appellant,
contrary to his pleas, of indecent acts and liberties with a
child between November 24, 1998, and June 1, 1999, and one
specification of making a false official statement, in violation
of Articles 107, 134, UCMJ, 10 U.S.C. §§ 907, 934 (2000). He
was acquitted of an additional specification of indecent acts
and one of assault, in violation of Article 128, UCMJ, 10 U.S.C.
§ 928 (2000). Court members sentenced Appellant to a
dishonorable discharge, reduction to E-1, forfeiture of all pay
and allowances, and confinement for four years.
2
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During the trial, the military judge sua sponte raised the
issue of whether the applicable statute of limitations barred
prosecution of some charges and specifications, but ruled that
it did not. Ultimately, in a post-trial session held pursuant
to Article 39(a), UCMJ, 10 U.S.C. § 839 (2000), the military
judge reversed himself and held that Appellant’s convictions for
indecent acts and liberties were barred by the statute of
limitations, in that the 2003 amendment to Article 43(b) of the
UCMJ did not retroactively extend to offenses committed before
the date of the amendment. Finding that Congress was silent on
whether the 2003 amendment was to be applied retroactively, he
ruled that in the absence of a “clear and unequivocal
declaration” of such application, it could only be applied
prospectively. The military judge accordingly set aside those
findings and ordered further sentencing proceedings with respect
to the remaining finding under Article 107, UCMJ.
The Government appealed under Article 62, UCMJ. The Army
Court of Criminal Appeals granted the appeal, holding that the
amendment to the statute applied retroactively and that the
post-trial proceedings could continue. United States v. Lopez
de Victoria, 65 M.J. 521 (A. Ct. Crim. App. 2007). Appellant
then petitioned this Court for review of the Court of Criminal
Appeals’ decision.
3
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While this Court was deciding whether to grant review,
Appellant moved this Court to stay all trial proceedings and
order him released from confinement. We denied that motion. On
August 2, 2007, the convening authority approved the adjudged
sentence, except for the forfeitures.
II.
Prior to 1983, there was no statutory provision for
interlocutory appeals by the government in courts-martial. Such
issues were reviewable only in the context of petitions for
extraordinary relief. See, e.g., Dettinger v. United States, 7
M.J. 216, 218 (C.M.A. 1979); West v. Samuel, 21 C.M.A. 290, 45
C.M.R. 64 (1972).
The Military Justice Act of 1983, Pub. L. 98-209 (1983),
amended Article 62 of the UCMJ to provide for a government
appeal of rulings by a military judge that terminated
proceedings with respect to a charge or specification or that
excluded evidence that was substantial proof of a material fact.1
The President, in his contemporaneous implementation of the Act,
expressly provided for appeal of adverse Article 62, UCMJ,
decisions to our Court, and from our Court to the Supreme Court.
R.C.M. 908(c)(3) (Manual for Courts-Martial, United States (MCM)
1
Article 62, UCMJ, was amended again in 1996 to provide for
interlocutory appeals of certain questions relating to
classified information. National Defense Authorization Act for
4
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(1984 ed.))2; see 28 U.S.C. § 1259(2), enacted as part of the
1983 Act (providing for discretionary Supreme Court review of
cases reviewed by a court of criminal appeals that the Judge
Advocate General orders sent to this Court for review).
Thereafter, we held that we had jurisdiction over a petition
filed by an appellant seeking review of an adverse decision by a
court of military review on a government appeal from a military
judge’s dismissal of a charge and specification on speedy trial
grounds. United States v. Tucker, 20 M.J. 52, 53 (C.M.A. 1985).
In its brief and argument on the specified issue, Appellee3
relies on a “plain meaning” analysis of Article 67, UCMJ, 10
U.S.C. § 867 (2000). Admitting that Article 67(a)(3)’s language
granting this Court jurisdiction over “all cases reviewed by a
court of criminal appeals in which, upon petition” is “arguably”
broad enough to grant this Court jurisdiction over such appeals,
Appellee points to Article 67(c), UCMJ, as fatal to
jurisdictional claims:
FY 1996, Pub. L. No. 104-106, § 1141(a), 110 Stat. 186, 467
(1996). The 1996 amendments are not at issue here.
2
Similar provisions are included in the current version of the
Manual. R.C.M. 908(c)(3) (Manual for Courts-Martial, United
States (MCM) (2005 ed.)).
3
We refer to “Appellee” rather than “Government” because there
is no unified position among the different government appellate
divisions in this case. In an amicus brief, the Air Force
argues that Tucker remains good law and that, at a minimum, this
Court has jurisdiction to hear Government appeals of Article 62,
UCMJ, decisions rendered by the courts of criminal appeals.
5
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In any case reviewed by it, the Court of Appeals for
the Armed Forces may act only with respect to the
findings and sentence as approved by the convening
authority and as affirmed or set aside as incorrect in
law by the Court of Criminal Appeals.
Article 67(c), UCMJ.
In this case, while the convening authority has now acted
on the findings and sentence, the Court of Criminal Appeals’
action was limited to this appeal. Because the Court of
Criminal Appeals has not acted upon the findings and sentence,
it is argued, this Court has no present jurisdiction over this
appeal.
This Court, like all federal courts, is a court of limited
jurisdiction. Clinton v. Goldsmith, 526 U.S. 529, 535 (1999);
13 Charles Alan Wright et al., Federal Practice and Procedure §
3522 (2d ed. 1984). That jurisdiction is conferred ultimately
by the Constitution, and immediately by statute. However, this
principle does not mean that our jurisdiction is to be
determined by teasing out a particular provision of a statute
and reading it apart from the whole. Since the beginning of
jurisprudence under the UCMJ, we have read the statutes
governing our jurisdiction as an integrated whole, with the
purpose of carrying out the intent of Congress in enacting them.
United States v. Best, 4 C.M.A. 581, 16 C.M.R. 155 (1954);
6
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United States v. Merritt, 1 C.M.A. 56, 1 C.M.R. 56 (1951).4
“[W]e believe it axiomatic that Article 67 must be interpreted
in light of the overall jurisdictional concept intended by the
Congress, and not through the selective narrow reading of
individual sentences within the article.” United States v.
Leak, 61 M.J. 234, 239 (C.A.A.F. 2005). In Leak, we declined to
read Article 67(c), UCMJ, in isolation as a substantive limit on
our jurisdiction because to do so “would defeat the overall
intent of Article 67 -- to grant this Court jurisdiction to
decide matters of law raised by appellants or certified by Judge
Advocates General.” Id. at 242. The same principle applies
here.
The statutory text expressly provides our Court with
jurisdiction over “all cases reviewed by a Court of Criminal
Appeals” upon certification by the Judge Advocate General,
Article 67(a)(2), UCMJ, or petition by the accused, Article
67(a)(3), UCMJ. Section 1259 of Title 28 provides the Supreme
Court with direct appellate jurisdiction over our decisions.
4
Although Appellee cites Best as authority for the proposition
that we are without jurisdiction in this case, that case does
not constitute such authority. Best was decided almost thirty
years before the enactment of the present Article 62, UCMJ, and
was a petition case, not involving either certification or an
extraordinary writ, the only avenues then available for
interlocutory appeals. It did not represent the state of the
law with respect to interlocutory matters at the time Congress
was considering the Military Justice Act of 1983. See infra p.
7
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These provisions further the statutory purpose of enacting a
“Uniform Code of Military Justice” in 1950 and the statutory
purpose of the Military Justice Act of 1983 in authorizing
direct Supreme Court review of decisions by appellate courts in
the military justice system. Appellee’s position -- that “all
cases” in Article 67(a), UCMJ, does not include interlocutory
appeals of adverse trial court rulings -- would defeat the
purposes of both statutes by precluding direct appeal of
disparate decisions by lower appellate courts.
The longstanding interpretation of the statutory text is
consistent with the legislative history of Article 62, UCMJ.
Congress, in enacting the revised Article 62, UCMJ, in 1983,
clearly intended to afford the government a right to appeal
which, “to the extent practicable . . . parallels 18 U.S.C. §
3731, which permits appeals by the United States in federal
prosecutions.” S. Rep. No. 98-53, at 23 (1983). In United
States v. Wilson, 420 U.S. 332, 338-9 (1975), the Supreme Court
read § 3731 as expressing a desire “to authorize appeals
whenever constitutionally permissible. . . . [I]t seems
inescapable that Congress was determined to avoid creating
nonconstitutional bars to the Government’s right to appeal.”
Since government appeals in criminal cases in the Article III
11. Best was overruled as to its narrow jurisdictional holding
in United States v. Boudreaux, 35 M.J. 291 (C.M.A. 1992).
8
United States v. Lopez de Victoria, No. 07-6004/AR
courts are creations of statute no less than in this Court,
United States v. Sanges, 144 U.S. 310 (1892), the same principle
applies to Article 62, UCMJ, appeals.
The original bill introduced by Senator Roger Jepsen of
Iowa would have limited further review of court of criminal
appeals’ decisions to “post-trial proceedings.” S. 2521, 97th
Cong. § 3(v)(2) (1982). During the pendency of the legislation,
however, the Department of Defense and others opposed such a
limitation.5 The bill as passed contained no such limitation,
and the legislative history expressly addressed such appeals:
“Either party may appeal an adverse [Article 62 appeal] ruling
from the Court of Military Review to the Court of Military
Appeals.” S. Rep. No. 98-53, at 23 (1983). Moreover, the state
of the law at the time the Military Justice Act of 1983 was
enacted explicitly comprehended jurisdiction in the Court of
Military Appeals under Article 67, UCMJ, to review interlocutory
decisions by the courts of military review. United States v.
Redding, 11 M.J. 100, 104-06 (C.M.A. 1981). In other words,
Congress legislated against a judicial backdrop that already
provided for a broad reading of jurisdiction over “cases” in the
extraordinary writ context, whether arising through
5
See The Military Justice Act of 1982: Hearings on S. 2521
Before the Subcommittee on Manpower and Personnel of the Senate
Committee on Armed Services, 97th Cong., 2d Sess. 23, 97, 115,
201, 283 (1982).
9
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certification, as in Redding, or by petition, as in United
States v. Caprio, 12 M.J. 30, 30-33 (C.M.A. 1981). Thus,
Congress’ decision to permit appeals from either party in the
1983 Act was not a jurisdictional innovation, but an adaptation
of the existing Title 18 statute to replace the cumbersome
extraordinary writ procedure with a direct appeal procedure.
Our Court has exercised jurisdiction over direct government
appeals in interlocutory cases since the enactment of the
present Article 62, UCMJ, as has the Supreme Court. The
landmark case of Solorio v. United States, 483 U.S. 435 (1987),
in which the government appealed a military judge’s ruling
dismissing certain charges under the “service connection”
doctrine of O’Callahan v. Parker, 395 U.S. 258 (1969), is
instructive. The Court of Military Review reversed, United
States v. Solorio, 21 M.J. 512 (C.G.C.M.R. 1985), whereupon the
accused petitioned this Court for review. We affirmed the
decision of the Court of Military Review. United States v.
Solorio, 21 M.J. 251 (C.M.A. 1986). The Supreme Court granted
certiorari under 28 U.S.C. 1259(3), the provision authorizing
the Supreme Court to grant certiorari over cases in which this
Court “granted a petition for review under section 867(a)(3) of
title 10.” 28 U.S.C. 1259(3); Solorio, 483 U.S. at 438(exercising its power under that statute). Article 67(a)(3),
UCMJ, authorizes this Court to review “all cases reviewed by a
10
United States v. Lopez de Victoria, No. 07-6004/AR
Court of Criminal Appeals” in which the accused’s petition
establishes good cause.
The Supreme Court granted certiorari, noting the
interlocutory nature of the appeal.6 Solorio, 483 U.S. at 437-
38. On certiorari, the Supreme Court not only agreed that the
military judge erred on the merits, but overruled O’Callahan.
Solorio, 483 U.S. at 436. Solorio mirrors the procedural
posture of the present case: an Article 62, UCMJ, Government
appeal to the service court of criminal appeals, followed by a
defense appeal to this court. Ultimate review of the question
was had on certiorari by the Supreme Court.
The subsequent decision in Clinton v. Goldsmith does not
stand for the proposition that the Supreme Court acted
improperly in reviewing our Article 62, UCMJ, decision in
Solorio. See Clinton v. Goldsmith, 526 U.S. 529, 535 (1999)
(referring to our Article 67(a), UCMJ, jurisdiction over cases
in which a finding or sentence “was (or could have been) imposed
in a court-martial proceeding,” as opposed to purely
administrative actions). The Article 62, UCMJ, posture of the
present case is one in which a finding or sentence “could have
been” imposed, and was in fact imposed. See also id. at 537
n.11 (citing Noyd v. Bond, 395 U.S. 683, 693-99 (1969), in which
11
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the Supreme Court discussed with approval our jurisdiction over
interlocutory matters).
Article 62, UCMJ, ensures that the Government has the same
opportunity to appeal adverse trial rulings that the prosecution
has in federal civilian criminal proceedings. The statutory
authority for review of all cases from the courts of criminal
appeals under Article 67(a)(2), UCMJ, and Article 67(a)(3),
UCMJ, with further review by the Supreme Court under 28 U.S.C. §
1259(3) fulfills one of the central purposes of the Uniform Code
of Military Justice -- uniformity in the application of the Code
among the military services. The decision in United States v.
Tucker, 20 M.J. 52 (C.M.A. 1985), and subsequent cases,
including the Supreme Court’s exercise of jurisdiction in
Solorio, ensures that cases will not be dismissed on the basis
of erroneous legal theories, and that the application of the law
will be uniform among the military departments. Cf. United
States v. Monett, 16 C.M.A. 179, 181, 36 C.M.R. 335, 337 (1966)
(stating that “Congress provided the certification process as a
means of achieving certainty in, and uniformity of,
interpretation of the Uniform Code in each armed force, as well
as for all the armed forces”). Accordingly, we affirm that
6
The Solicitor General had opposed certiorari on ripeness
grounds. Brief for the United States in Opposition at 14,
Solorio (No. 85-1581), 1986 U.S. S. Ct. Briefs LEXIS 1166.
12
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cases appealed under Article 62, UCMJ, may be reviewed under
Article 67(a), UCMJ.
III.
The indecent acts and liberties of which the Appellant was
convicted took place at various times between November 24,
1998, and June 1, 1999. When these acts were committed, the
applicable statute of limitations was five years, as provided in
Article 43(b)(1), UCMJ.
In 2003, Congress amended Article 43(b)(1), UCMJ, to except
from the general five-year statute certain listed “child abuse
offense[s],” listed in Article 43(b)(2)(B), UCMJ, including
indecent acts and liberties with a child. The statute of
limitations (SOL) for these offenses would expire when the child
reached the age of twenty-five years. National Defense
Authorization Act for FY 2004, Pub. L. No. 108-136, § 551, 117
Stat. 1392, 1481 (2003).7
The following is a chronology of the relevant events in
this case.
7
A further amendment in 2006, after the charges against
Appellant were received by the summary court-martial convening
authority, changed the limitation period to the greater of the
life of the child or five years after the offense. National
Defense Authorization Act for FY 2006, Pub. L. No. 109-163, §
553, 119 Stat. 3136, 3264 (2006). This amendment is not at
issue in this case.
13
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Date Event
Nov. 24, 1998 Beginning of period during which offenses
are alleged to have occurred
Jun. 1, 1999 End of period during which offenses are
alleged to have occurred
Nov. 24, 2003 Effective date of new SOL -- until child
reaches twenty-five
May 31, 2004 Expiration of five-year SOL for all alleged
indecent acts offenses
May 31, 2006 Receipt of charges by summary court-martial
convening authority8
In United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000),
we declined to apply the civilian child abuse statute of
limitations contained in 18 U.S.C. § 3283 to courts-martial.
Pointing out that the military and civilian systems of criminal
justice are separate as a matter of law and that, as such, great
caution should be exercised in judicial extension of general
statutes to the court-martial system, we examined the wording of
the statute and determined that it did not supplant Article 43,
UCMJ, as the applicable statute of limitations for child abuse
offenses under the UCMJ. McElhaney, 54 M.J. at 124-26; see also
United States v._Spann, 51 M.J. 89, 92-93 (C.A.A.F. 1999)
(holding that, in light of military justice system being
separate from federal criminal justice system, federal victims’
8
An accused is not liable to be tried by court-martial unless
the sworn charges are received by the summary court-martial
14
United States v. Lopez de Victoria, No. 07-6004/AR
rights statute did not apply to court-martial practice absent
affirmative action by the President).
In early 2003, Senator Bill Nelson of Florida, a member of
the Armed Services Committee, introduced a bill in response to
McElhaney to conform the military statute of limitations for
child sexual abuse offenses to the federal rule. S. 326, 108th
Congress (2003). The bill would have amended Article 43, UCMJ,
by incorporating by reference the provisions of 18 U.S.C. § 3283for child abuse offenses tried under the UCMJ. At the time, §
3283 provided as follows: “No statute of limitations that would
otherwise preclude prosecution for an offense involving the
sexual or physical abuse of a child under the age of 18 years
shall preclude such prosecution before the child reaches the age
of 25 years.” Senator Nelson’s bill never became law.9
Instead, Congress chose to substantively amend Article 43,
UCMJ, by inserting into it a separate statute of limitations for
child abuse offenses devoid of reference to § 3283. National
Defense Authorization Act for FY 2004 (NDAA), Pub. L. No. 108-
136, § 551, 117 Stat. 1392, 1481 (2003).10 The new section of
convening authority within the prescribed limitations period.
See Article 43(b), UCMJ.
9
The Court of Criminal Appeals’ statement that “Congress
incorporated Senator Nelson’s language into the . . . Act,”
Lopez de Victoria, 65 M.J. at 526, mischaracterizes what
Congress did.
10
Section 3283 is referred to in the Senate report, but the
reference provides no enlightenment as to the temporal
15
United States v. Lopez de Victoria, No. 07-6004/AR
Article 43, UCMJ, provided as follows: “A person charged with
having committed a child abuse offense against a child is liable
to be tried by court-martial if the sworn charges and
specifications are received before the child attains the age of
25 years by an officer exercising summary court-martial
jurisdiction with respect to that person.” Article 43(b)(2)(A),
UCMJ. The NDAA and the accompanying report are silent on
whether Congress intended the amendment to apply prospectively
or retroactively.
While Congress certainly possesses the constitutional
authority to apply legislation retroactively, subject to the
limits of the Ex Post Facto Clause, U.S. Const. Art. I, § 9, cl.
3, retroactive application of statutes is normally not favored
in the absence of explicit language in the statute or necessary
implication therefrom. Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 208-09 (1988); Greene v. United States, 376 U.S. 149,
160 (1964); United States v. Magnolia Petroleum Co., 276 U.S.
160, 162-63 (1928); 2 Norman J. Singer, Statutes and Statutory
Construction § 41.4 at 387 (6th ed. 2001). This principle
applies to statutes of limitations. See also Fordham v. Belcher
Towing_Co., 710 F.2d 709, 710-11 (11th Cir. 1983); 3A Norman J.
Singer, supra, § 72.3 at 709.
application of the amendment. S. Rep. No. 108-46, at 317
(2003).
16
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In Stogner v. California, 539 U.S. 607 (2003), the Supreme
Court held that a criminal prosecution for child abuse offenses
under a statute purporting to revive offenses that were barred
at the time of the statute’s enactment violated the Ex Post
Facto Clause of the Constitution. Id. at 609. The Court
declined to address whether a statute extending an unexpired
statute of limitations (as is the case here) ran afoul of the
clause.11 Id. at 618. Still, that is not the question before
us.
What is before us is a question of statutory construction,
which is a question of law to be decided de novo. United States
v. Falk, 50 M.J. 385, 390 (C.A.A.F. 1999). As noted above, both
the 2003 statute amending Article 43, UCMJ, and its legislative
history are silent as to whether Congress intended it to apply
retroactively to cases such as this, or only to cases in which
the offense occurred after the effective date of the statute.
We are cognizant of the recent federal cases interpreting
18 U.S.C. § 3283 as applying retroactively to cases in which the
11
The 2005 amendment to the Analysis of the R.C.M. 907(b)(2)
discusses the changes to the statute of limitations in light of
Stogner, as follows: “The referenced case permits unexpired
periods to be extended by the new statute, but does not allow
the statute to renew an expired period.” 70 Fed. Reg. 60708(Oct. 18, 2005). As discussed infra, Stogner dealt with a
different statute. Furthermore, the Supreme Court merely stated
that its decision did not affect federal appellate court
decisions that had “upheld extensions of unexpired statutes of
17
United States v. Lopez de Victoria, No. 07-6004/AR
statute became effective before the previous limitation had
expired on the accused’s conduct. See, e.g., United States v.
Chief, 438 F.3d 920, 923-24 (9th Cir. 2006); United States v.
Jeffries, 405 F.3d 682, 684-85 (8th Cir. 2005). But § 3283’s
predecessor, 18 U.S.C. § 3509(k), did not just change the
previous statute of limitations by increasing the term of the
limitation period, as was done with Article 43, UCMJ; instead,
§ 3509(k), later recodified as § 3283, precluded the previous
limitation from applying. That is some evidence that Congress
intended § 3283 to apply retroactively. There was also some
legislative history supporting such a conclusion. Chief, 438
F.3d at 924. In contrast, neither the language of Article 43,
UCMJ, nor the legislative history provide any evidence that
Congress intended Article 43(b)(2)(A), UCMJ, to apply
retroactively.
Appellee argues that the fact that Congress entitled the
amendment “Extended limitation period for prosecution of child
abuse cases in courts-martial” evinces an intent to extend the
period to cases such as this. Catchlines or section headings
such as this are not part of a statute. They cannot vary its
plain meaning and are available for interpretive purposes only
if they can shed light on some ambiguity in the text. Bhd. of
limitations.” Stogner, 539 U.S. at 618. In any event, this is
a matter of statutory construction that we decide de novo.
18
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R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29
(1947). Here, however, the text of the statute is not
ambiguous; it is silent. It is the section heading itself that
is ambiguous. The amendment ipso facto provides an “extended
limitation period,” from five years to the date the child
reaches the age of twenty-five. The wording of the section
heading could apply with equal force to a purely prospective
extension or a retrospective one. That being the case, it is of
no assistance in determining the intent of Congress.
It is also urged that statutes of limitation are
“procedural” statutes as opposed to “substantive” ones, and that
changes in such statutes are not subject to the presumption
against retroactivity that applies to substantive changes in
law. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 275
nn.28, 29 (1994). This would be at odds with our longstanding
approach to construction of such statutes, which has been to
look at each statute as a whole, considering its language,
legislative history, the canons of statutory construction,
applicable Supreme Court decisions, and the congressional intent
to create and maintain a separate system of military justice --
without regard to categorizations such as “procedural.” See,
19
United States v. Lopez de Victoria, No. 07-6004/AR
e.g., McElhaney, 54 M.J. at 124-26. We decline to engage in
such an approach.12
Considering the lack of any indication of congressional
intent to apply the 2003 amendment retrospectively to cases such
as this, the general presumption against retrospective
legislation in the absence of such an indication and the general
presumption of liberal construction of criminal statutes of
limitation in favor of repose, we decline to extend the reach of
the 2003 amendment to Article 43, UCMJ, to cases which arose
prior to the amendment of the statute.
IV.
The decision of the United States Army Court of Criminal
Appeals is reversed. The specifications of Charge I and Charge
I are dismissed. The record of trial is returned to the Judge
Advocate General of the Army for referral to the convening
authority to order a sentence rehearing.
12
Moreover, even if one attempted to categorize statutes of
limitation as “procedural,” the holding in Stogner v. California
suggests that they are “substantive.” If revival of a time-
barred prosecution by an extending statute violates the Ex Post
Facto Clause, then the statute itself cannot be merely
procedural. Stogner, 539 U.S. at 611-16.
20
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RYAN, Judge, with whom ERDMANN, Judge, joins (dissenting):
In Clinton v. Goldsmith, the Supreme Court stated that this
Court’s “independent statutory jurisdiction is narrowly
circumscribed.” 526 U.S. 529, 535 (1999). This statement
reaffirms the well-established rule that, “Article I courts are
courts of special jurisdiction created by Congress that cannot
be given the plenary powers of Article III courts. The
authority of the Article I court is not only circumscribed by
the [C]onstitution, but limited as well by the powers given to
it by Congress.” In re United Missouri Bank of Kansas City,
N.A., 901 F.2d 1449, 1451-52 (8th Cir. 1990) (internal citation
omitted). I dissent in this case because neither Article 62,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2000)
nor Article 67, UCMJ, 10 U.S.C. § 867 (2000), nor any other
statute provides for an appeal of an Article 62, UCMJ, appeal to
this Court. This Court does not have the power to act unless
Congress has given it statutory authority to do so: in my view
the intent of Congress or the President, to the extent it is not
enacted in a statute and is facially inconsistent with another
statute, is not sufficient.
Article 62(a)(1), UCMJ, affords the Government the right to
appeal certain specifically identified trial rulings by the
military judge. Article 62(b), UCMJ, provides that this
Government right to appeal is to the Court of Criminal Appeals
United States v. Lopez de Victoria, 07-6004/AR
(CCA). Article 62, UCMJ, gives jurisdiction to the CCA to act
on a Government appeal and nothing more.
“[W]hen the statute’s language is plain, the sole function
of the courts -- at least where the disposition required by the
text is not absurd -- is to enforce it according to its terms.”
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530
U.S. 1, 6 (2000) (citations and quotation marks omitted). The
plain language of Article 62, UCMJ, does not mention this Court
or implicate Article 67, UCMJ. Nothing in the text of Article
62, UCMJ, provides this Court jurisdiction to entertain an
appeal from a decision of a CCA based on Article 62, UCMJ.1
Article 67(a)(2) and (3), UCMJ, states the subject matter
jurisdiction of this Court extends to cases specified by the
Judge Advocates General or cases reviewed by the CCA “upon
petition of the accused and on good cause shown . . . .”
Article 67(a), UCMJ, does not mention or implicate Government
appeals pursuant to Article 62, UCMJ, as cases within this
Court’s jurisdiction. In light of this, it is not at all clear
to me how it is possible, as the majority asserts, to discount
the import of Article 67(c), UCMJ, on the jurisdiction of this
1
Nor is United States v. Wilson to the contrary -- it is not a
case involving jurisdiction, let alone a case involving this
Court’s jurisdiction. Rather, it stands only for the more
general proposition that the availability of a Government appeal
from an adverse trial ruling should be available to the extent
permissible under the Constitution generally and the double
jeopardy clause in particular. 420 U.S. 332, 338-39 (1975).
2
United States v. Lopez de Victoria, 07-6004/AR
Court. Article 67(a), UCMJ, must be read in conjunction with
the remainder of the statute, including Article 67(c), UCMJ.
See, e.g., Doe v. Chao, 540 U.S. 614, 630-31 (2004) (“It is a
cardinal principle of statutory construction that a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.”) (citations and quotation marks
omitted); United Sav. Ass’n v. Timbers of Inwood Forest Assoc.,
Ltd., 484 U.S. 365, 371 (1988) (stating that statutory
construction is a “holistic endeavor”). And Article 67(c),
UCMJ, states in relevant part, “[i]n any case reviewed by it,
the Court of Appeals for the Armed Forces may act only with
respect to the findings and sentence as approved by the
convening authority and as affirmed or set aside as incorrect in
law by the Court of Criminal Appeals.”
By its very nature, an appeal of an Article 62, UCMJ,
appeal is interlocutory: there has been no findings, no
sentence, and no convening authority action. In Goldsmith the
Supreme Court reaffirmed the principle that this Court can “act
only with respect to the findings and sentence as approved by
the convening authority and as affirmed or set aside as
incorrect in law by the [CCA].”2 526 U.S. at 534 (citing Article
2
The Majority cites to Goldsmith and notes that this Court has
“Article 67(a) jurisdiction over cases in which a finding or
3
United States v. Lopez de Victoria, 07-6004/AR
67(c), UCMJ). There is no statutory explanation as to why the
instant case is exempted from either Article 67(c), UCMJ, or the
Supreme Court’s reading of that statutory provision to limit our
jurisdiction to the express terms of the statute.3 It is thus
unclear to me how this Court has jurisdiction under Article
67(c), UCMJ, to take action with regard to a ruling that is not
itself part of the findings or adjudged sentence and has not
been approved by the convening authority.
Congress clearly expressed this Court’s jurisdiction under
Article 67, UCMJ, and said nothing about this Court in Article
62, UCMJ. In examining Articles 62 and 67, UCMJ, together, we
must be mindful that the Supreme Court has consistently held
that “[where] Congress includes particular language in one
section of a statute but omits it in another section . . . it is
sentence ‘was (or could have been) imposed in a court-martial
proceeding.’” United States v. Lopez de Victoria, ___ M.J. ___
(11) (C.A.A.F. 2007) (quoting Goldsmith, 526 U.S. at 535). Of
course, in Goldsmith the Supreme Court addressed the application
of the All Writs Act, 28 U.S.C. § 1651 (2000), in light of the
limited jurisdictional scope of Article 67, UCMJ. Goldsmith
said nothing about the relationship between Articles 62 and 67,
UCMJ, the question before us today. While it may well be that
the precise issue in this case could have been brought as an
extraordinary writ pursuant to the All Writs Act and Article 67,
UCMJ, that is not the procedural posture of this case.
3
Contrary to the assertion of the Majority, neither the holding
nor reasoning in United States v. Leak, invites a different
reading of Article 67(c), UCMJ. See 61 M.J. 234, 239 n.2
(C.A.A.F. 2005) (distinguishing between this Court’s “review” of
cases under Article 67(a), UCMJ, and the limitation on its power
to “act” under Article 67(c), UCMJ). In this case, the Court
“acts.”
4
United States v. Lopez de Victoria, 07-6004/AR
generally presumed that Congress acts intentionally and
purposely in the disparate . . . exclusion.” Russello v. United
States, 464 U.S. 16, 23 (1983) (citation omitted); see also
Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (finding
that the use of a phrase in one part of a statutory scheme “only
underscores our duty to refrain from reading a phrase into the
statute when Congress has left it out” of another section). We
are obliged to presume that Congress gave appellate jurisdiction
over Article 62, UCMJ, Government appeals to the CCAs alone.
The majority makes the opposite presumption, expanding this
Court’s Article 67, UCMJ, jurisdiction to matters that do not
fall within Article 67(c), UCMJ, by reference to the legislative
history of Article 62, UCMJ. See Lopez de Victoria, __ M.J. __
(7-10). This is unfounded for two reasons. First, when “the
provisions of [a statute] are clear and unequivocal on their
face . . . [there is] no need to resort to the legislative
history.” United States v. Oregon, 366 U.S. 643, 648 (1961).
The plain text of Article 62, UCMJ, only gives the CCA
jurisdiction over Government appeals, and the plain text of
Article 67(c), UCMJ, permits this Court to “act only with
respect to the findings and sentence as approved by the
convening authority and as affirmed or set aside as incorrect in
law by the Court of Criminal Appeals.” See Goldsmith, 526 U.S.
5
United States v. Lopez de Victoria, 07-6004/AR
at 534. Therefore, it is inappropriate to look to legislative
history at all.
Second, the majority’s reliance on legislative history
relating to Article 62, UCMJ, to construe Article 67, UCMJ, a
statutory provision adopted thirty-three years earlier, is
misplaced. “We have observed on more than one occasion that the
interpretation given by one Congress (or a committee or Member
thereof) to an earlier statute is of little assistance in
discerning the meaning of that statute.” Public Employees
Retirement Sys. v. Betts, 492 U.S. 158, 168 (1989); see also
United States v. Price, 361 U.S. 304, 332 (1960) (noting the
danger of using post-enactment legislative history because “the
views of a subsequent Congress form a hazardous basis for
inferring the intent of an earlier one”); Abner J. Mikva & Eric
Lane, An Introduction to Statutory Interpretation and the
Legislative Process 39 (1997) (“Postenactment explanations of
legislative meaning would seem absolutely taboo.”).
Nor is the fact that Solorio v. United States, 483 U.S. 435(1987) originated in a Government appeal “instructive.” Lopez
de Victoria, __ M.J. __ (10). Neither the pleadings of the
parties, the granted issue in that case, nor the opinion of the
Supreme Court identified or raised any issue related to the
procedural history in that case as it related to this Court’s
jurisdiction. While the opinion addressed an important
6
United States v. Lopez de Victoria, 07-6004/AR
jurisdictional theory regarding the scope of court-martial
subject matter jurisdiction, there was neither discussion of nor
a decision on the present jurisdictional issue.
Finally, while I agree that United States v. Tucker, 20
M.J. 52 (C.M.A. 1985), held that this Court has jurisdiction in
Article 62, UCMJ, appeals to the lower court, reliance on it is
misplaced. First, the initial justification given for the
finding of jurisdiction in Tucker was this Court’s reliance on
older cases, cases that asserted this Court was responsible for
supervising all facets of military justice. 20 M.J. at 53
(citing United States v. Caprio, 12 M.J. 30, 32 (C.M.A. 1981),
and United States v. Redding, 11 M.J. 100, 103-06 (C.M.A. 1981).
Of course, the Supreme Court in Goldsmith rejected this view.
526 U.S. at 536 (“the CAAF is not given authority, by the All
Writs Act or otherwise, to oversee all matters arguably related
to military justice, or to act as a plenary administrator even
of criminal judgments it has affirmed”). The Tucker Court did
not have the Supreme Court’s guidance on this point when they
relied on the notion in Caprio and Redding of plenary authority
over military justice. In my view, in light of Goldsmith, these
cases are too slender a reed upon which to rest jurisdiction.
Moreover, the only other justification given for the Court’s
holding in Tucker -– that we can base jurisdiction on
Congressional intent as reflected in the legislative history of
7
United States v. Lopez de Victoria, 07-6004/AR
Article 62, UCMJ, as discussed above -- does not provide a
satisfying substitute for statutory jurisdiction. See supra pp.
5-6.
It is certainly plausible that the majority’s reading of
legislative history is correct, and that, as it asserts, the
members of the Senate Committee on Armed Services of the 97th
and 98th Congress intended to permit this Court to review the
decisions of a CCA addressing a Government Article 62, UCMJ,
appeal. And I do not disagree that, as a matter of legal
policy, immediate review of an Article 62, UCMJ, appeal by this
Court could be the most expeditious course of action. But
congressional intent and expediency are not sufficient to confer
jurisdiction, and nothing in either Article 62 or 67, UCMJ,
expressly gives this Court the power to review cases in the
procedural posture of this case. The Supreme Court in Goldsmith
made clear that Congress must give this Court a statutory grant
of authority to act. 526 U.S. at 535. There is no statutory
grant of jurisdiction here, and no reason Congress cannot amend
our statutorily conferred jurisdiction in order to achieve the
result the majority asserts Congress and the President intended.
I respectfully dissent.
8