United States v. Private E1 ANTONIO T. MOORE ( 2019 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    BURTON, HAGLER, and FLEMING
    Appellate Military Judges
    UNITED STATES, Appellant
    v.
    Private E1 ANTONIO T. MOORE
    United States Army, Appellee
    ARMY MISC 20180692
    Headquarters, 25th Infantry Division
    Kenneth Shahan, Military Judge
    Colonel Ian R. Iverson, Staff Judge Advocate
    For Appellant: Captain Allison L. Rowley, JA (argued); Colonel Steven P. Haight,
    JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Catharine M. Parnell, JA;
    Captain Allison L. Rowley, JA (on brief); Lieutenant Colonel Eric K. Stafford, JA;
    Captain Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on reply brief).
    For Appellee: Captain Benjamin J. Wetherell, JA (argued); Lieutenant Colonel
    Christopher D. Carrier, JA; Major Jack D. Einhorn, JA; Captain Benjamin A.
    Accinelli, JA; Captain Benjamin J. Wetherell, JA (on brief).
    3 July 2019
    ----------------------------------------------------------------------
    MEMORANDUM OPINION AND ACTION ON APPEAL
    BY THE UNITED STATES FILED PURSUANT TO
    ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
    ----------------------------------------------------------------------
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    HAGLER, Judge:
    The United States appeals the ruling of a military judge dismissing one
    specification and partially dismissing another specification based on an amendment
    occurring after the expiration of the statute of limitations.
    We first address whether we have jurisdiction over an appeal of a partial
    dismissal under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862
    [hereinafter UCMJ]. After concluding that we do, we reverse the military judge’s
    ruling for both specifications.
    MOORE—ARMY MISC 20180692
    BACKGROUND
    As it remains integral to our analysis of the military judge’s ruling (and
    provides context to the analysis of our dissenting colleague), the unique procedural
    history of this case warrants an extended discussion. 1
    A. The Initial Trial
    In 2014, a panel of officers sitting as a general court-martial convicted
    appellee, contrary to his pleas, of two specifications of willfully disobeying a
    superior commissioned officer, six specifications of sexual assault, and one
    specification of assault consummated by battery, in violation of Articles 90, 120,
    and 128, UCMJ. The panel sentenced appellee to a dishonorable discharge,
    confinement for twenty years, forfeiture of all pay and allowances, and reduction to
    the grade of E-1. The convening authority approved the adjudged sentence.
    On appeal, pursuant to a Hills error, 2 this court set aside the findings of guilty
    for five of the six sexual assault specifications, affirmed the remaining findings of
    guilty, and authorized a rehearing on the impacted specifications. United States v.
    Moore, ARMY 20140875, 2017 CCA LEXIS 191 (Army Ct. Crim. App. 
    23 A.K. Marsh. 2017
    ) (mem. op.). Our superior court affirmed. United States v. Moore, 2018 CAAF
    LEXIS 63 (C.A.A.F. 10 Jan. 2018).
    B. The Rehearing
    After appellee’s case was returned to the convening authority, the government
    elected to pursue a rehearing for the five specifications that were set aside. Notably,
    rather than proceeding with the same charged language from the initial trial, trial
    counsel instead amended these specifications prior to referral. More specifically, for
    each specification, trial counsel changed the bodily harm language from “removing
    [AR’s] underwear, placing his hands on her buttocks, and pressing her down with his
    hands” to “by penetrating [AR’s] vulva with his penis.”
    1
    When reviewing matters under Article 62, UCMJ, we may act only with respect to
    matters of law. United States v. Gore, 
    60 M.J. 178
    , 185 (C.A.A.F. 2004). While we
    limit our holding to the legal issues presented, we provide a broader factual and
    procedural picture for context. To be clear, we “may not make findings of fact” and
    nothing in this opinion should be construed as extending beyond our express factual
    limitations. United States v. Lincoln, 
    42 M.J. 315
    , 320 (C.A.A.F. 1995).
    2
    United States v. Hills, 
    75 M.J. 350
    (C.A.A.F. 2016).
    2
    MOORE—ARMY MISC 20180692
    At the rehearing, the defense did not object to these changes prior to entry of
    pleas. Instead, before closing arguments, the defense moved to dismiss three of the
    amended specifications as being outside the statute of limitations. The military
    judge put the court in recess to allow the government to prepare its response, and the
    military judge and counsel subsequently held two conferences pursuant to Rule for
    Courts-Martial (R.C.M.) 802.
    Upon reopening the court, the military judge explained they had discussed
    “the narrowing of the issues that we need to resolve, which we all appear to agree is
    whether the changes are a major change or a minor change.” The military judge also
    directed the parties to United States v. Reese, 
    76 M.J. 297
    (C.A.A.F. 2017), which he
    “would likely be relying upon . . . in analyzing the change issue in this case.”
    Following argument by the parties, the military judge issued a ruling for each
    of the amended specifications. Essentially, after the defense moved to dismiss three
    specifications, the military judge provided a ruling addressing all five specifications.
    In his ruling, the military judge applied Reese in determining that each of the
    amendments constituted major changes, but he reached separate conclusions over the
    appropriate remedy.
    First, for the three specifications encompassed in the defense motion, the
    military judge dismissed the specifications as being “barred from prosecution due to
    the running of the statute of limitations.” The military judge stated that any minor
    changes “would not be problematic,” but “because the changes are major,” the
    government did not provide the specifications to the relevant convening authority
    within the statute of limitations.
    Next, for the two specifications that were not part of the defense motion, the
    military judge concluded “the major change created a requirement for a new Article
    32 Preliminary Hearing,” but the defense “waived both an objection to the major
    change and a motion for a defective referral” by failing to make a timely objection.
    The military judge noted the defense had “raised the possibility of a motion for a
    new Article 32 Preliminary Hearing,” which meant “they were clearly aware of the
    issue and chose not to file a motion” for these specifications. No one addressed a
    statute of limitations concern with these two specifications.
    Unlike the three specifications within the defense motion, these two
    specifications involved conduct occurring on or after 28 June 2012 (i.e. the revised
    Article 120). As outlined below, the military judge later found that “[a]ll counsel at
    trial, and the military judge, overlooked the fact that the effective date of
    elimination of the statute of limitations for the ‘new’ Article 120 was 26 December
    2013,” and that the timeframe of these specifications fell into the “window” between
    the effective date of the statute (28 June 2012) and the elimination of the statute of
    limitations (26 December 2013).
    3
    MOORE—ARMY MISC 20180692
    The government did not appeal the ruling dismissing three specifications, and
    the military judge convicted appellee of the two remaining specifications of sexual
    assault (Specifications 2 and 3 of Additional Charge I). At the combined sentence
    rehearing, which included the additional convictions previously affirmed by this
    court, the military judge sentenced appellee to a dishonorable discharge and
    confinement for thirteen years.
    C. The Post-Trial Motion to Dismiss
    Prior to authentication, the defense filed a “Motion to Reverse Findings of
    Guilt and [to] Dismiss Specifications 2 and 3 of Additional Charge I.” 3
    In this filing, the defense asserted: (1) the statute of limitations for these two
    specifications – like the previously dismissed three specifications – was five years;
    (2) the military judge had already determined the amendments to these specifications
    constituted major changes; and (3) appellee “was not aware of his right to assert the
    statute of limitations and was not advised by the court of the right.” In support of
    its motion, the defense cited R.C.M. 907(b)(2)(B), which states “[i]f it appears the
    accused is unaware of the right to assert the statute of limitations in bar of trial, the
    military judge shall inform the accused of this right.”
    In response, the government did not challenge the statute of limitations, but
    instead argued: (1) the amendments were not major changes; (2) the defense
    “tactically waived” the right to object to the amendments; and (3) the government
    was not barred from prosecuting the offenses based on Article 43(g), UCMJ. The
    government also cited to Musacchio v. United States, in which the Supreme Court
    stated that a “district court’s failure to enforce an unraised limitations defense under
    [18 U.S.C.] § 3382(a) cannot be a plain error.” 
    136 S. Ct. 709
    , 718 (2016).
    In reply, the defense disputed the applicability of Article 43(g), UCMJ, and
    reiterated its arguments regarding a major change and that counsel were “clearly
    unaware of the statute of limitations applicability to these two specifications and
    thus could not apprise the accused.”
    Additionally, to distinguish Mussachio, the defense cited to United States v.
    Collins, 
    78 M.J. 530
    (A.F. Ct. Crim. App. 2018). In Collins, the Air Force Court
    concluded that “Musacchio did not address the affirmative duty to bring the
    statutory bar to the attention of the accused imposed on the trial judge by R.C.M.
    907(b)(2)(B), which has no civilian 
    equivalent.” 78 M.J. at 535
    .
    3
    While the defense referenced a potential Article 39(a) session, both sides requested
    the military judge issue a ruling based on their written pleadings.
    4
    MOORE—ARMY MISC 20180692
    D. The Military Judge’s Ruling
    The military judge issued a written ruling granting the defense motion in part.
    Specifically, the military judge granted the motion for Specification 3 of Additional
    Charge I, but he found that only a portion of Specification 2 of Additional Charge I
    fell outside the statute of limitations. As such, the military judge said he would
    issue new findings that retained “a finding of guilty for the period [within the statute
    of limitations].”
    In his analysis, the military judge reaffirmed his previous ruling that the
    amendments constituted major changes. Among other things, the military judge
    concluded “the change was not fairly included in the original specification,” as the
    government “changed the manner in which the offense was alleged to be committed”
    and “no longer had to prove that the sexual act was brought about by additional
    force beyond the penetration.”
    The military judge also rejected the government’s argument regarding Article
    43(g), UCMJ. In particular, the military judge stated this clause “only [applies] to
    when charges or specifications are dismissed as defective or insufficient,” and the
    specifications in this case were “set aside based on [Hills].”
    Next, the military judge concluded the relevant statute of limitations was five
    years. To this extent, the military judge stated that “[a]ll counsel at trial, and the
    military judge, overlooked the fact that the effective date of elimination of the
    statute of limitations for the ‘new’ Article 120 was 26 December 2013, and that the
    charged offenses were allegedly committed during the 18 month ‘window’ between
    28 June 2012 and 26 December 2013.”
    Finally, the military judge rejected the government’s argument regarding
    waiver. For this issue, the military judge placed heavy reliance on R.C.M.
    907(b)(2)(B), as he found the rule “places an affirmative obligation upon the
    military judge to inform an accused of the right to assert the statute of limitations in
    bar of trial, if it appears that the accused is unaware of this right.”
    The military judge added that a “plain reading of this rule is that if the
    military judge has not done so when it is required, then the accused has not waived
    his right to assert the defense,” and “[t]he Court has no doubt that had the Defense
    been aware of the statute of limitations, they would have objected, as evidenced by
    the fact that they lodged an objection to the other specifications that they recognized
    did fall outside the statute of limitations.” To distinguish Musacchio, the military
    judge favorably cited to Collins and then determined “[t]he situation here is nearly
    identical.”
    5
    MOORE—ARMY MISC 20180692
    E. The Government’s Appeal
    Following the military judge’s ruling, the government filed a timely notice of
    appeal pursuant to R.C.M. 908. This notice explained, “The subject of the
    Government appeal will be the Military Judge’s ruling to dismiss Specification 3 of
    Additional Charge I and partial dismissal of Specification 2 of Additional Charge I.”
    On appeal, the parties dispute whether we have jurisdiction regarding the
    partially dismissed specification and whether the military judge erred in his ruling.
    We address both issues below.
    LAW AND DISCUSSION
    A. Appellee’s Jurisdictional Challenge to Specification 2 of Additional Charge I
    Appellee asserts we lack jurisdiction over Specification 2 of Additional
    Charge I, as the military judge’s ruling does not “terminate[] the proceedings with
    respect to” this specification. See UCMJ art. 62(a)(1)(A). In response, the
    government argues that a partial dismissal is not fatal to this court’s jurisdiction and
    cites to a multitude of cases interpreting 18 U.S.C. § 3731 (the federal civilian
    statute addressing government appeals). For the reasons outlined below, we find
    that we have jurisdiction over this specification.
    1. Law and Standard of Review
    We review issues of statutory interpretation and jurisdiction de novo. United
    States v. Jacobsen, 
    77 M.J. 81
    , 84 (C.A.A.F. 2017) (citing United States v. Vargas,
    
    74 M.J. 1
    , 5 (C.A.A.F. 2014)). We look first to the text of the statute – if the
    statutory language is unambiguous, the statute’s plain language will control. 
    Id. (citations omitted).
    4
    4
    In the National Defense Authorization Act for Fiscal Year 2017, Congress added a
    liberal construction clause to Article 62, UCMJ, which states “[t]he provisions of
    this section shall be liberally construed to effect its purposes.” Pub. L. No. 114-328,
    § 5326, 130 Stat. 2000, 2929 (2016). Critically, this amendment “will not apply to
    cases in which charges were already referred to trial on the effective date.”
    
    Jacobsen, 77 M.J. at 87
    n.5 (citing Pub. L. No. 114-328 at § 5542(a), 130 Stat. at
    2967). Therefore, as the charges in this case were referred to trial prior to the
    effective date of the amendment, this clause is not relevant to our resolution of the
    jurisdictional issue.
    6
    MOORE—ARMY MISC 20180692
    In the context of Article 62, UCMJ, it is also proper for courts to look to cases
    interpreting 18 U.S.C. § 3731 for guidance. 
    Id. at 86
    (citing United States v.
    Browers, 
    20 M.J. 356
    , 359 (C.M.A. 1985)). As our superior court (CAAF) has
    noted, “Congress authorized federal civilian government appeals in criminal cases
    under 18 U.S.C. § 3731 before it authorized them in the military, and modeled
    Article 62, UCMJ, in large part, after 18 U.S.C. § 3731.” 
    Id. (citation omitted).
    Put
    another way, “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.’” United States v. Lopez de Victoria, 
    66 M.J. 67
    , 70
    (C.A.A.F. 2008) (ellipsis in original) (quoting S. Rep. No. 98-53, at 23 (1983)).
    Our superior court has been clear, however, that “[f]ederal court decisions
    interpreting 18 U.S.C. § 3731 constitute guidance, not binding precedent, in the
    interpretation of Article 62.” United States v. Wuterich, 
    67 M.J. 63
    , 71 (C.A.A.F.
    2008). Furthermore, any analysis of Article 62 must also “take into account the
    structural differences between courts-martial and trials in federal district court, as
    well as the textual similarities and differences with respect to Article 62, UCMJ, and
    18 U.S.C. § 3731.” 
    Id. 2. Comparing
    Article 62, UCMJ, and 18 U.S.C. § 3731
    In relevant part, Article 62, UCMJ, states that the United States may appeal
    “[a]n order or ruling of the military judge which terminates the proceedings with
    respect to a charge or specification.” See art. 62(a)(1)(A), UCMJ.
    By comparison, the relevant section of 18 U.S.C. § 3731 states that the United
    States can appeal “a decision, judgment, or order of a district court dismissing an
    indictment or information or granting a new trial after verdict or judgment, as to any
    one or more counts, or any part thereof, except that no appeal shall lie where the
    double jeopardy clause . . . prohibits further prosecution.”
    As such, the plain language of 18 U.S.C. § 3731 appears to contain a
    modifying clause – “or any part thereof” – that is not contained within Article 62,
    UCMJ. The parties have not cited, and we have not yet found, any military case
    squarely addressing this issue in the context of partial dismissals. On this point,
    however, we find that a closer look at the federal case law and legislative history
    regarding 18 U.S.C. § 3731 is illuminating.
    In particular, 18 U.S.C. § 3731 did not contain the phrase “or any part
    thereof” until 2002, and there is ample case law interpreting the prior statutory
    language. Most notably, in Sanabria v. United States, the Supreme Court stated in a
    footnote, “We agree with the Court of Appeals . . . that there is no statutory barrier
    to an appeal from an order dismissing only a portion of a count.” 
    437 U.S. 54
    , 69
    n.23 (1978). The Court analyzed the term “count” and determined that “Congress
    7
    MOORE—ARMY MISC 20180692
    could hardly have meant appealability to depend on the initial decision of a
    prosecutor to charge in one count what could also have been charged in two, a
    decision frequently fortuitous for purposes of the interests served by § 3731.” 
    Id. The Court
    added, “To so rule would import an empty formalism into a statute
    expressly designed to eliminate ‘[technical] distinctions in pleadings as limitations
    on appeals by the United States.’” 
    Id. (quoting H.R.
    Conf. Rep. No. 91-1768, p. 21
    (1970)) (alteration in original); accord, S. Rep. No. 91-1296, p. 5 (1970). 5
    Within its pleadings, the government provided citations to numerous federal
    courts that reached the same conclusion regarding the previous version of 18 U.S.C.
    § 3731. See, e.g., United States v. Serafini, 
    167 F.3d 812
    , 814-16 (3d Cir. 1999);
    United States v. Hill, 
    55 F.3d 1197
    , 1199-1200 (6th Cir. 1995); United States v.
    Bloom, 
    149 F.3d 649
    , 652-54 (7th Cir. 1998); United States v. Martin, 
    733 F.2d 1309
    , 1310 (8th Cir. 1984); United States v. Marubeni America Corp., 
    611 F.2d 763
    ,
    764-65 (9th Cir. 1980); United States v. Oakar, 
    111 F.3d 146
    , 149-150 (D.C. Cir.
    1997).
    In fact, the primary precipitating event for the amendment to 18 U.S.C. §
    3731 appeared to be the fact that, despite the language of Sanabria, “one federal
    circuit court . . . held that [the statute] does not permit any government appeals from
    the dismissal of only part of a count.” H.R. Rep. No. 107-685, at 188 (2002) (citing
    United States v. Louisiana Pacific Corporation, 
    106 F.3d 345
    (10th Cir. 1997)). To
    this extent, “[t]he proposed amendment” was designed to “make clear that dismissals
    of any part of a count are subject to appeal by the United States in appropriate
    circumstances.” 
    Id. In this
    vein, this amendment was meant to codify, not change,
    the existing analysis of the majority of the circuit courts.
    3. Jurisdiction of Partial Dismissals under Article 62, UCMJ
    In light of the foregoing, we conclude that we have jurisdiction regarding
    Specification 2 of Additional Charge I. While we acknowledge the textual
    differences between the statutes, we find a natural syllogism between the Supreme
    5
    Writing separately, Justice Stevens explained he could not “join that portion of the
    Court’s decision which states that the Criminal Appeals Act permits an appeal from
    only a portion of a count,” and he referred to that portion of the opinion as “dictum.”
    
    Sanabria, 437 U.S. at 78-80
    (Stevens, J., concurring). Other courts, to include the
    Seventh Circuit, have concluded, “Sanabria’s treatment of § 3731 was not dictum.
    It was no stray remark or aside. It explains the Court’s rationale and thus is part of
    the holding.” United States v. Bloom, 
    149 F.3d 649
    , 652-54 (7th Cir. 1998); see also
    United States v. Serafini, 
    167 F.3d 812
    , 814-16 (3d. Cir. 1999) (stating the Tenth
    Circuit “stands alone” in declining to follow the Sanabria majority).
    8
    MOORE—ARMY MISC 20180692
    Court’s analysis of the phrase “count” in Sanabria and our required analysis of the
    phrase “specification” in this case.
    In our view, any attempt to distinguish these terms, particularly in light of
    the extensive case law regarding the prior version of § 3731, would constitute the
    same type of “empty formalism” rejected in 
    Sanabria. 437 U.S. at 69
    n.23. On this
    point, we again note that the Sanabria majority (and the majority of federal circuit
    courts) did not adopt the view of Justice Stevens that the previous version of § 3731
    “clearly does not” permit an appeal “from only a portion of a count.” 
    Id. at 80
    (Stevens, J., concurring); see also note 5, infra.
    We find this case is readily distinguishable from Jacobsen, in which this court
    found a lack of jurisdiction related to a different clause of Article 62, UCMJ. In that
    case, our superior court agreed that § 3731 was “instructive in some respects,” but
    the government’s position “conflict[ed] with the language and structure of Article
    62, UCMJ, and [our superior court’s] 
    precedent.” 77 M.J. at 86-87
    . We do not find
    the same degree of textual, structural, and precedential conflicts in this case.
    Furthermore, unlike in Jacobsen, we find the federal case law provides useful
    guidance towards analyzing the relevant predicate phrase in this case, and we have
    not found a clear statement of legislative intent that would subvert our conclusion.
    
    Id. at 84
    n.4, 86-87.
    After answering the jurisdictional question in the affirmative, we next address
    the military judge’s ruling. 6
    B. Whether the Military Judge Erred in Finding a Major Change
    For the reasons outlined below, we find the military judge erred in concluding
    the amendments constituted a major change. As such, and unlike our dissenting
    colleague, we need not analyze the interplay between R.C.M. 603, R.C.M. 905, and
    R.C.M. 907(b)(2)(B). Simply put, if there is no major change, then there is no
    statute of limitations issue.
    “Whether a change made to a specification is minor is a matter of statutory
    interpretation and is reviewed de novo.” 
    Reese, 76 M.J. at 300
    (citing United States
    v. Atchak, 
    75 M.J. 193
    , 195 (C.A.A.F. 2016)).
    6
    Appellee also moved to dismiss this appeal based on an alleged violation of the
    timelines from the Joint Rules of Appellate Procedure. In response, the government
    provided several documents substantiating the process and timeline associated with
    its appeal. Pursuant to our review of the record, we find no violation and deny
    appellee’s motion to dismiss.
    9
    MOORE—ARMY MISC 20180692
    R.C.M. 603(a) provides that “[m]inor changes in charges and specifications
    are any except those which add a party, offenses, or substantial matter not fairly
    included in those previously preferred, or which are likely to mislead the accused as
    to the offenses charged.” 
    Id. (quoting United
    States v. Moreno, 
    46 M.J. 216
    , 218
    (C.A.A.F. 1997)). The R.C.M. 603(a) Discussion clarifies what constitutes a minor
    change and includes, inter alia, “those [changes] necessary to correct inartfully
    drafted or redundant specifications; to correct a misnaming of the accused; to allege
    the proper article; or to correct other slight errors.”
    R.C.M. 603(d) provides that, when “[c]hanges or amendments to charges or
    specifications other than minor changes [are] made over the objection of the accused
    . . . the charge or specification affected [must be] preferred anew.” See also 
    Reese, 76 M.J. at 300
    -02. The plain language of R.C.M. 603(d) does not discuss prejudice,
    and our superior court has overruled any precedent requiring a separate showing of
    prejudice. 
    Reese, 76 M.J. at 301-02
    .
    For several reasons, we conclude the amendments in this case were minor.
    First, the initial and amended specifications both alleged sexual assault by
    penetrating AR’s vulva with the accused’s penis by bodily harm. In fact, as
    amended, the alleged act of bodily harm was “penetrating [AR’s] vulva with [the
    accused’s] penis.” Thus, it is hard to conclude the amended language was not
    “fairly included” in the initial specification, as this language was already there.
    Second, in Reese, the CAAF explicitly acknowledged that “changing the
    means by which a crime is accomplished may constitute a slight error under the
    appropriate circumstances.” 
    Id. at 301
    (citation omitted). To the extent that the
    amendments in this case may have technically “[changed] the means by which [the]
    crime was accomplished,” this case presents the type of “appropriate circumstances”
    in which any such error would be “slight.” We simply do not see how the
    amendments in this case added “a party, offenses, or substantial matter not fairly
    included in those previously preferred.” R.C.M. 603(a).
    Third, and relatedly, the amendments could hardly have “[misled] the accused
    as to the offenses charged.” See 
    id. Our superior
    court’s rationale in Reese is
    important here. As part of its analysis, the court expressly noted the “question of
    whether Reese was on notice that he would need to defend against a touching
    charge” and found the government’s arguments on this issue to be “unconvincing.”
    
    Reese, 76 M.J. at 301
    . Indeed, “[t]he evil to be avoided is denying the defendant
    notice of the charge against him, thereby hindering his defense preparation.” 
    Id. at 300
    (citation omitted). In light of this analysis, it is clear that notice is still a
    critical component of major change issues.
    10
    MOORE—ARMY MISC 20180692
    In Reese, the government amended a specification from licking the victim’s
    penis with appellant’s tongue to touching the penis with his hand, a change based on
    the victim’s deposition two days before trial. One can plainly see how such a
    change would negatively affect the defense’s approach and preparation for trial.
    In the present case, we see no such hindrance. The government made the
    changes months before trial. If the defense intended to offer that the penetration did
    not occur, or that the acts were consensual, these avenues were not foreclosed by the
    amended specifications. The government would still have to prove penetration and
    lack of consent beyond a reasonable doubt, just as if the defense had offered these
    theories on the initial specifications. In sum, there is no reason to conclude the
    defense was deprived of notice or a reasonable opportunity to defend against the
    amended specifications. 7
    We do acknowledge that, in Reese, the CAAF explicitly held that R.C.M.
    603(d) does not have a separate prejudice 
    component. 76 M.J. at 301-02
    . That said,
    we do not read Reese to negate the full language of R.C.M. 603(a). Specifically, in
    our view, Reese does not preclude us from considering the likelihood of misleading
    the accused in deciding whether a change is major in the first place. In fact, we read
    Reese to encourage appellate courts to consider both “unfair surprise” and similar
    concepts to avoid the underlying “evil” it identified: insufficient notice to the
    accused.
    CONCLUSION
    The appeal of the United States pursuant to Article 62, UCMJ, is GRANTED
    and the decision of the military judge is therefore SET ASIDE. We return the record
    of trial to the military judge for action consistent with this opinion.
    Senior Judge BURTON concurs.
    7
    We are keenly aware that our superior court is analyzing a related issue in United
    States v. Stout, ARMY 20120592, 2018 CCA LEXIS 174 (Army Ct. Crim. App. 9
    Apr. 2018) (mem. op.), rev. granted, 
    78 M.J. 93
    (C.A.A.F. 2018). To the extent that
    our superior court provides clarifying guidance that impacts this case, we stand
    ready to re-examine our analysis.
    11
    MOORE—ARMY MISC 20180692
    FLEMING, Judge, concurring in part and dissenting in part:
    While I concur with the majority’s analysis of the jurisdiction issue, I
    disagree with their conclusion that the amendments constituted a minor change.
    Therefore, I respectfully dissent. As outlined below, I would find the military judge
    did not err in: (1) concluding the amendments constituted a major change; (2)
    determining that appellee did not waive the issue; and (3) rejecting the government’s
    argument regarding Article 43(g), UCMJ.
    1. Whether the Military Judge Erred in Finding a Major Change
    Like the military judge, I would find the amendments constituted a major
    change. In this case, the government changed the bodily harm language from
    “removing [AR’s] underwear, placing his hands on her buttocks, and pressing her
    down with his hands” to “penetrating [AR’s] vulva with his penis.” In analyzing
    this issue, the military judge cited to Reese and concluded, in various parts of his
    rulings, that “the manner of the offense was significantly changed,” “the change was
    not fairly included in the original specification,” and the government no longer had
    to prove “that the sexual act was caused by the [originally] charged actions.”
    While this case is a closer call than Reese, I would similarly conclude that the
    amendments constituted a major change. In particular, the changes “altered the
    means of committing the offense.” 
    Reese, 76 M.J. at 300
    . Based on the original
    charge, the government had to prove offensive touchings beyond the alleged
    penetration, and a potential defense would involve proving that such touchings did
    not occur (or did not cause the sexual act). In my view, changing the bodily harm
    from multiple overt offensive touchings to the sexual penetration itself does not
    “constitute a slight error.” 
    Id. at 301
    .
    Furthermore, amending the specification created an additional element. The
    military judge correctly noted the change required “the Government to now prove
    [AR] did not consent” as an element. See United States v. McDonald, 
    78 M.J. 376
    (C.A.A.F. 2019) (affirming three elements exist when the actus reus and the bodily
    harm for the sexual assault are the same physical act); accord Dep’t of the Army,
    Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 3-45-14 n.2 (10 Sep.
    2014) (“When the same physical act is alleged as both the actus reus and bodily
    harm for the charged sexual assault, include . . . a final [third] element.”). I cannot
    agree with the majority opinion that an amendment, which changes the number of
    elements for a specification, is minor in nature.
    For the above reasons, I would find the military judge did not err in finding
    the changes were major. This, however, does not end the analysis.
    12
    MOORE—ARMY MISC 20180692
    The government has repeatedly pointed to the full language of R.C.M. 603(d),
    which states that major changes “may not be made over the objection of the
    accused.” (emphasis added). To be clear, I do not seek to diminish the importance
    of this language, nor have I ignored its connection to R.C.M. 905. Under normal
    circumstances, I would find that an accused is not entitled to relief based on an
    untimely objection to an alleged major change. This case is not normal, as it
    requires an additional analysis of R.C.M. 907(b)(2)(B).
    Put another way, this issue cannot be analyzed in a vacuum. Instead, the
    language of R.C.M. 603(d) must be considered within the broader context of R.C.M.
    907(b)(2)(B), which places a separate, independent, and affirmative duty on the
    military judge. Thus, while I acknowledge the untimely nature of the defense
    objection, it simply does not impact the required analysis under R.C.M.
    907(b)(2)(B).
    2. Whether the Military Judge Erred in Finding Appellee Did Not Waive the Issue 8
    At trial and on appeal, the government asserts that appellee waived his right
    to object to the amendments and thus cannot assert the statute of limitations as a
    defense. I disagree, for many of the reasons cited by the military judge.
    More specifically, I would find the military judge correctly annotated the
    breadth, scope, and uniqueness of R.C.M. 907(b)(2)(B). See, e.g., United States v.
    Jesko, ARMY 20160439, 2018 CCA LEXIS 328, *5-8 (Army Ct. Crim. App. 29 Jun.
    2018) (mem. op.) (explaining how the rule places an “affirmative responsibility” on
    the military judge to determine that any potential waiver is knowing and voluntary).
    At trial, the government argued that R.C.M. 907(b)(2)(B) was inapplicable
    because appellee “tactically waived” his right to object. The military judge directly
    addressed this argument in his ruling; among other things, the military judge stated
    8
    In their pleadings, the parties focus on waiver. I acknowledge there is another
    potential argument that appellee forfeited this issue by failing to raise this claim
    during trial. See United States v. Briggs, 
    78 M.J. 289
    (C.A.A.F. 2019) (applying a
    plain error review for a statute of limitations claim raised for the first time on
    appeal). Under the facts of this case, I do not find this standard to be appropriate.
    At a minimum, the military judge’s ruling can be properly construed as a
    reconsideration of his earlier ruling during trial, which sua sponte addressed the two
    specifications at issue. See United States v. Neal, 
    68 M.J. 289
    , 296 (C.A.A.F. 2010)
    (explaining that until the record of trial is authenticated, the military judge “retains
    control over a court-martial” and may reconsider prior rulings). Regardless, this
    standard would not change my underlying analysis regarding R.C.M. 907(b)(2)(B).
    13
    MOORE—ARMY MISC 20180692
    “it was clear the Defense was unaware of the right” and “[t]he Court has no doubt
    that had the Defense been aware of the statute of limitations, they would have
    objected, as evidenced by the fact that they lodged an objection to the other
    specifications that they recognized did fall outside the statute of limitations.” The
    military judge also said that “all counsel” overlooked the effective date of the
    elimination of the statute of limitations. Nothing in the record contradicts these
    conclusions.
    In his ruling, the military judge also rejected the government’s arguments
    regarding Musacchio and stated that R.C.M. 907(b)(2)(B) “places an affirmative
    obligation upon the military judge to inform an accused of the right to assert the
    statute of limitations in bar of trial, if it appears that the accused is unaware of this
    right.” The military added that a “plain reading of this rule is that if the military
    judge has not [informed the accused] when it is required, then the accused has not
    waived his right to assert the defense.”
    On this issue, our superior court’s recent opinion in United States v. Briggs is
    highly instructive:
    In Musacchio, the Supreme Court reasoned that a statute
    of limitations defense is not jurisdictional and therefore
    the “defense becomes part of a case only if the defendant
    puts the defense in issue.” 
    Id. Accordingly, “[w]hen
    a
    defendant does not press the defense, then, there is no
    error for an appellate court to correct—and certainly no
    plain error.” 
    Id. The Supreme
    Court, however, made this
    decision in the context of a federal criminal prosecution
    governed by the Federal Rules of Criminal Procedure. We
    think that cases under the Rules for Courts-Martial are
    distinguishable. As indicated above, R.C.M. 907(b)(2)(B)
    requires the military judge to inform the accused of the
    right to assert the statute of limitations. The Federal
    Rules of Criminal Procedure have no analogous provision.
    Accordingly, in a court-martial, R.C.M. 907(b)(2)(B)
    makes the statute of limitations “part of a case” whenever
    the accused has a statute of limitations defense and does
    not appear to know it.
    United States v. Briggs, 
    78 M.J. 289
    , 295 (C.A.A.F. 2019) (emphasis added).
    This rationale is strikingly similar to the analysis of Collins cited by the
    military judge. Indeed, shortly following Briggs, our superior court affirmed the Air
    Force Court’s decision in Collins in a one-sentence opinion. United States v.
    Collins, __ M.J. __, 2019 CAAF LEXIS 231 (C.A.A.F. Mar. 12, 2019).
    14
    MOORE—ARMY MISC 20180692
    Finally, while not dispositive to my analysis, the discussion section of R.C.M.
    907(b)(2)(B) also supports the military judge’s ruling. This section states that “if
    new charges are drafted or a major amendment made after the statute of limitations
    has run, prosecution is barred.” See R.C.M. 907(b)(2)(B) discussion (internal
    citation omitted). The inclusion of this language strongly implies that military
    judges are required to identify and discuss such issues with an accused.
    3. Whether the Military Judge Erred in Rejecting Appellant’s Article 43(g) Claim
    At trial, the government also asserted that it was “not barred from prosecuting
    [the amended specifications] because of [Article] 43(g).” Again, I disagree, for the
    same reason provided by the military judge.
    Article 43(g) provides a potential savings clause when “charges or
    specifications are dismissed as defective or insufficient for any cause” and the
    applicable statute of limitations “has expired” or “will expire within 180 after the
    date of dismissal.” See UCMJ art. 43(g)(1) (emphasis added).
    In his ruling, the military judge stated this clause “only [applies] to when
    charges or specifications are dismissed as defective or insufficient,” and the
    specifications in this case were “set aside based on [Hills] and an unconstitutional
    application of [Mil. R. Evid.] 413.” The military judge noted the government
    “believes that this equates to a dismissal due to defective specifications,” but “the
    Court disagrees.” I do, too. The specifications at issue were never dismissed as
    being defective or insufficient, and any attempt to apply Article 43(g) is trying to fit
    a square peg into a round hole. 9
    In conclusion, I would affirm the military judge’s ruling and thus dissent from
    the majority opinion.
    9
    On appeal, the government also argues, “Even assuming the amendments to [the
    specifications] constituted a major change . . . the receipt by the summary court-
    martial convening authority of the original charge on 11 December 2013 tolled the
    statute of limitations as to the amended charge.” Any such argument was largely
    undeveloped at trial, and the government has cited to several cases that were not
    presented to the military judge. However, even upon review, none of these cases
    address a major change occurring after the expiration of the statute of limitations.
    Finally, as the issue is not before us, I take no position over whether the government
    can utilize Article 43(g) in seeking to re-prefer specifications that are dismissed
    based on a major change occurring after the statute of limitations expires.
    15
    MOORE—ARMY MISC 20180692
    FOR THE
    FOR THE COURT:
    COURT:
    MALCOLM
    MALCOLM H.   H. SQUIRES,
    SQUIRES, JR.
    JR.
    Clerk of Court
    Clerk of Court
    16