United States v. Dowty , 1998 CAAF LEXIS 34 ( 1998 )

COX, Chief Judge

(dissenting):

For over 192 years, military justice laws regarding statutes of limitations have been contained within the four corners of the Articles of War and, more recently, if indeed 47 years is recent, the Uniform Code of Military Justice. My colleagues, without hesitation or remorse, expand the reach of military justice law by assimilating 12 USC § 3419 into Article 43, Uniform Code of Military Justice, 10 USC § 843. Because I am convinced that the Uniform Code of Military Justice is the exclusive body of law governing the limitation on the exercise of court-martial jurisdiction, I respectfully dissent.

Statutes of limitations create seemingly intolerable results as the party who successfully pleads the statute as a bar to prosecution, indeed, escapes prosecution. Thus, quite naturally, prosecutors eagerly seek avenues to circumvent the plain language of such statutes. There is nothing new about the Government’s effort to enlarge the limitations via statutory construction. Colonel Winthrop in his seminal work on military law made the following observation regarding various efforts to enlarge by statutory interpretation the then-existing Statute of Limitations found in Article 103 of the Articles of War (1806 as amended in 1890):

It will thus be seen that the military statute of limitations admits of no exceptions to its operation other than such as are indicated in the statute itself.

W. Winthrop, Military Law And Precedents 258 (2d ed. 1920 Reprint).

Let there be no mistake. The issue presented by this ease is about assimilating, without express statutory language, a remote federal statute of limitations into the Uniform Code of Military Justice. This is a significant departure from the traditional approach of statutory construction of the military statute of limitations. I do not view the broad approach undertaken by my colleagues as either desirable or necessary to carry out the principal purposes of the Uniform Code of Military Justice.

The majority opinion makes an eloquent case for its unprecedented expansion of Article 43. Indeed, when you read that opinion, you get a warm feeling that it is the right thing to do. It seems just and proper that we toll the statute of limitations against this appellant, because it must be said that he availed himself of the procedural protections of the Right to Financial Privacy Act, 12 USC §§ 3401-3422. How can he now be heard to complain that the statute of limitations found in Article 43 was tolled while he sought the protection of the courts from the governmental search of his bank accounts?

This approach, however, begs the question: Can we, or should we, look without the Uniform Code of Military Justice to find laws to expand the statute of limitations on prosecutions of offenses committed by military members?

It seems prudent for us to reflect upon our genesis. From whence comes the congressional authority to regulate the armed forces? From whence comes the authority which permits Congress to enact rules regarding the right to financial privacy in bank-account records?

I find that Article I, § 8, Clause 14 of the Constitution empowers Congress to “make Rules for the Government and Regulation of the land and naval Forces.” Likewise, Article I, § 8, Clause 3 provides the authority to “regulate Commerce ... among the several States,” which power has long since been construed to permit Congress to provide for reasonable regulation of financial institutions engaged in interstate commerce or availing themselves of various federal programs such as the Federal Deposit Insurance Corporation (FDIC). Title 12, §§ 3401-3422, was enacted under the latter authority. Article 43 of the Uniform Code was enacted under the former. Unless Congress makes clear that it is enacting a statute designed for the “Government and Regulation” of the armed forces, I am reluctant to construe a remote statute clearly designed to accomplish some purpose other than to regulate the armed forces as being applicable to trials by courts-martial.

Accordingly, I would uphold the ruling of the military judge to dismiss the three specifications in each charge as being barred by Article 43(b)(1), UCMJ, 10 USC § 843(b)(1).