Army TJAG Certifies Issue for Review

11/9/2020

"No. 21-0042/AR. U.S. v. Danny L. McPherson. CCA 20180214. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

DID THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERR WHEN IT DISMISSED THE SPECIFICATIONS IN CHARGE I ON THE GROUNDS THAT THE STATUTE OF LIMITATIONS HAD EXPIRED?"

Read the ACCA opinion here.

1 Comment

11/18/2020 02:47:57 am

I made the same argument in 2018, as defense counsel at a rehearing (on a Hills issue) of a case originally tried in 2014 with several 134 specifications of alleged misconduct at various times prior to 2007. I charted every amendment of Article 43 and noted that the 2016 amendments removed 134 indecent acts offenses from the list of child abuse offenses qualifying for the extended period of limitations under subsection (b)(2)(B), reverting this offense to the default 5-year limitations period as of 23 December 2016. I also noted that the "clarification" in 2017 was an attempt to retroactively change the statute of limitations in violation of the Ex Post Facto clause. The military judge ruled against me, but I'm tempted to think my arguments were adopted by successors and may yet lead to a showdown at CAAF pitting textualist against "purposivist" canons of statutory interpretation.

It is interesting that ACCA discussed a recent unpublished opinion also by ACCA - a different panel - (US v. Adams, 2020 CCA LEXIS 232 (ACCA 13 July 2020)), where the court found on essentially the same issue that "the 2017 NDAA's legislative history, as well as Congress' previous amendments to Articles 43 and 120, compel us to find that the plain meaning of the statute would limit its application in a manner that Congress did not intend." In this statement, the Court in Adams at once admits that the plain meaning of the statute reverts the period of limitations for 134 offenses, but refuses to enforce that plain meaning based on the court's perceived legislative intent. The Court in McPherson instead concludes: "acceptance of the government's argument leads to more litigation and uncertainty as parties and the trial courts struggle over whether an offense in a particular case constitutes a "child abuse offense" for purposes of the extended statute of limitations absent clear congressional direction." Either way, the 2016 amendment to Article 43 at issue is an embarrassing drafting mistake, at best.

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Army TJAG Certifies Issue for Review

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