CAAF summarily remands statute of limitations issue

Yesterday CAAF granted a statute of limitations issue in an Army case, specified a related IAC issue, and summarily kicked the case back to ACCA.

In United States v. Brehm, __ M.J. ___, No. 08-0703/AR (C.A.A.F. Jan. 14, 2009), CAAF granted review of "WHETHER IN LIGHT OF THE COURT'S RECENT RULING IN UNITED STATES v. LOPEZ DE VICTORIA, 66 M.J. 67 (C.A.A.F. 2008) SPECIFICATION 1 OF CHARGE I, INDECENT LIBERTIES WITH A CHILD, SHOULD BE DISMISSED AS BEING TIME BARRED UNDER THE STATUTE OF LIMITATIONS." CAAF also specified this IAC issue: "WHETHER THE TRIAL DEFENSE COUNSEL PROVIDED EFFECTIVE ASSISTANCE OF COUNSEL AS TO THE ISSUE OF WAIVER OF THE STATUTE OF LIMITATIONS REGARDING SPECIFICATION 1 OF CHARGE I, INDECENT LIBERTIES WITH A CHILD."

CAAF summarily set aside ACCA's decision regarding the affected spec and the sentence. CAAF then remanded the case for ACCA to conduct "further appellate inquiry on the granted and specified issues." CAAF ordered ACCA to "obtain an affidavit from the trial defense counsel relating to the specified issue. If the court, after reviewing the affidavit, determines that a fact-finding hearing is necessary, see United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997), that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will conduct its Article 66(c), UCMJ, review."