United States v. Lopez de Victoria

66 M.J. 67, 2008 CAAF LEXIS 257, 2008 WL 516689
CourtCourt of Appeals for the Armed Forces
DecidedFebruary 26, 2008
Docket07-6004/AR
StatusPublished
Cited by83 cases

This text of 66 M.J. 67 (United States v. Lopez de Victoria) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lopez de Victoria, 66 M.J. 67, 2008 CAAF LEXIS 257, 2008 WL 516689 (Ark. 2008).

Opinions

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-l, forfeiture of all pay and allowances, and confinement for four years.

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.

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 implemen[69]*69tation 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) (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:

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(e), 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, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999); 13 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper and Richard D. Freer, 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); 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,

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Cite This Page — Counsel Stack

Bluebook (online)
66 M.J. 67, 2008 CAAF LEXIS 257, 2008 WL 516689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lopez-de-victoria-armfor-2008.