Recent ACCA Opinion: United States v. McPherson

ACCA affirmed Staff Sergeant Danny L. McPherson’s findings of guilt and sentence but set aside and dismissedCharge I and its specifications.  Contrary to his pleas, a military judge sitting as a general court-martial convicted Appellant of six specifications of indecent acts or liberties[1]that occurred in 2004, against his then ten-year-old biological daughter (KR) in violation of Article 134, UCMJ.[2] Appellant was sentenced to a dishonorable discharge, confinement for 15 years, and a reduction to the grade of E-1.[3]On appeal, ACCA set aside and dismissed Charge I and its specifications because they were time-barred. However, ACCA affirmed Appellant’s remaining findings of guilt and sentence.  
McPherson opinion here.

     At issue in Appellant’s appeal is whether the Military Justice Act of December 2016 amendment (MJA 2016) to Article 43, UCMJ, caused the statute of limitations for “indecent acts with a child” charged under Article 134, UCMJ (2000), to revert from the victim’s 25thbirthday to the general five-year general statute of limitations, and thus would render these acts time-barred.   Also, at issue is whether the military judge erred when they failed to advise Appellant of his right to assert a statute of limitations defense at trial.
    Appellant argued that the extended statute of limitations up until the 25thbirthday of the victim (KR) does not apply to indecent acts with a child after MJA 2016 went into effect in December 2016 and was retroactively applied to acts occurring before the enactment of the amendment. To refute Appellant’s argument, the government argued that MJA 2016 did not become effective until January 2019, however ACCA disagreed. ACCA explained their disagreement by stating that “there is a constitutional interest in forbidding the State to revive a long-forbidden prosecution.” Therefore, Appellant’s charging in March 2017 for the 2004 acts, was time-barred (to expire in 2009) by MJA 2016.
    Article 43, UCMJ, states the statute of limitations for “child abuse” cases. There are certain enumerated child abuse offenses which extend the statute of limitations to more than the general five years, in which “indecent acts with a child” was expressly listed as being included in that extension.  The MJA 2016 again amended Article 43, UCMJ, to extend the statute of limitations for specific child abuse offenses to allow receipt of sworn charges and specifications by the convening authority during the life of the child or within 10 years after the offense is committed, whichever is longer, but here Congress explicitly removed “indecent acts with a child” in this amendment; application of this was retroactive if the applicable limitation period had not yet expired. In effect, making the five-year general statute of limitations period applicable to Appellant’s 2004 acts; once this applied, Appellant’s acts were time-barred from prosecution in 2009.  
     In addition to finding that Charge I and its specifications were time-barred, ACCA found that the military judge committed plain error by not informing Appellant at trial that he had the right to assert a statute of limitations defense. ACCA found this error to be clear and obvious, due to the plain and unambiguous text of the statute, and that Appellant would have asserted this defense upon notice. 


[1]The issue here dealt only with “indecent acts” with a child, and not “indecent acts and liberties.”

[2]Appellant was also convicted of an additional two specifications of aggravated sexual contact with a child under twelve years of age, and one specification of assault consummated by batter, in violation of Article 120(g), UCMJ (2008), and Article 128, UCMJ (2012). 

[3]All rights, privileges, and property Appellant was deprived by virtue of that portion of the findings set aside by this decision were ordered restored.

Alexandria Murphy

Intern