Argument Preview: A messy confluence of the failure to state an offense, the power of a CCA, the statute of limitations, and appellate delay in United States v. Carter, Nos. 17-0079/AF & 17-0086/AF
CAAF will hear oral argument in the certified Air Force case of United States v. Carter, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page), on Tuesday, May 9, 2017, after the argument in Claxton. The case involves one certified issue and five granted issues (but three of the granted issues are Ortiz trailer issues). The issues arise from convictions of child endangerment and committing indecent acts with a child, both in violation of Article 134, that were reversed on appeal by the Air Force CCA because the specifications didn’t allege a terminal element, then re-preferred, re-referred, and re-tried, but then reversed again by the CCA (and dismissed with prejudice) in a split decision (discussed here) that found that the CCA’s first reversal did not authorize the second trial:
Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding that the convening authority exceeded the scope of AFCCA’s remand when he referred Appellant’s case to an “other” trial under R.C.M. 1107(e)(2) following AFCCA’s original remand decision.
I. The Air Force Court of Criminal Appeals dismissed the charge and specifications in this case in 2013 and again in 2016. But it exceeded the eighteen-month presumption of unreasonable delay before doing so each time. Has Appellee been denied due process where he completed his sentence to three years of confinement 158 days before this court affirmed the lower court’s first dismissal of this case on August 2, 2013?
II. Whether Appellee’s prosecution for child endangerment was barred by the statute of limitations where more than five years had elapsed and Appellee was not brought to trial within 180 days of this court’s affirmance of the lower court’s dismissal of that specification
III. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, was statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.
IV. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violated the appointments clause given his status as a principal officer on the United States Court of Military Commission Review.
V. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President of the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(b)(4)(C) and (D), authorizing reassignment or withdrawal of Appellate Military judges so appointed by the Secretary of Defense of his designee.
Back in 2010, Master Sergeant (E-7) Carter was convicted of indecent liberties with a child in violation of Article 120(j) (2016), and of child endangerment and indecent acts with a child, both in violation of Article 134, and sentenced to confinement for 4 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority disapproved the conviction of violation of Article 120(j) and reduced the sentence to confinement to three years, but approved the remainder of the findings and sentence.
The Article 134 specifications, however, failed to allege a terminal element and so therefore failed to state offenses. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here). Because there was no objection at trial, the Air Force CCA applied CAAF’s decision in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page). Nevertheless, the CCA reversed the findings in 2013, the JAG certified, and CAAF summarily affirmed.
The case was remanded and new charges were preferred and referred to a new general court-martial. Carter made numerous objections (including objecting based on the statute of limitations), but the trial proceeded and Carter was again convicted. The second sentence included confinement for 40 months, total forfeitures, and reduction to E-1 (but not a punitive discharge).
The Air Force court, however, reversed again. In a 2016 decision discussed here, a three-judge panel of the Air Force CCA split 2-1 to conclude that the court’s 2013 decision did not authorize further proceedings and that the charges should be dismissed with prejudice. The dissenting judge found that the second trial was an independent proceeding based on a totally new charge – analysis that I found (and still find) to be persuasive.
CAAF will now review that decision and also determine whether the statute of limitations prohibited the second trial and whether delays in the CCA’s review deprived Carter of his right to speedy appellate review.
Military law recognizes three types of re-trials: a rehearing, a new trial, and an other trial. See R.C.M. 810. A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense. In addition to these – perhaps – is the possibility of a totally separate court-martial involving new charges based on the same allegations after the original charges are dismissed after the first trial.
The parties in Carter agreed at the second trial that it was an other trial
The UCMJ gives a Court of Criminal Appeals the authority to determine what happens after it reverses a conviction:
If the Court of Criminal Appeals sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.
Article 66(d). The CCA does not, however, have the authority to carry out such orders. Rather, Article 66(e) states that the JAG “shall . . . instruct the convening to take action in accordance with the decision of the [CCA].”
When the CCA reversed Carter’s convictions in 2013, its opinion didn’t explicitly order a rehearing. Rather, it declared:
Having considered the record in light of Humphries, the findings of guilty to Charge III and its specifications and the sentence are set aside and dismissed. The record of trial is returned to the Judge Advocate General for remand to an appropriate convening authority.
United States v. Carter, No. 37715, slip op. at 5-6 (A.F. Ct. Crim. App. Jan. 4, 2013) (link to slip op.). Reviewing this action in 2016, the two-judge majority of the CCA concluded that the 2013 dismissal did not authorize (and therefore precluded) any further proceedings, including an other trial. The certified issue challenges this conclusion.
The Air Force Appellate Government Division’s brief asserts that an other trial is a trial de novo, Gov’t Div. Br. on Certified Issue at 10, and that the AFCCA’s decision to dismiss the charge rather than order a rehearing did not deprive the convening authority of the power or order an other trial, Gov’t Div. Br. on Certified Issue at 11. Carter responds that:
After a CCA dismisses a charge, a convening authority may not initiate further proceedings unless authorized to do so by the CCA.
App. Br. on Certified Issue at 5-6. This argument is based on the binary choice offered in Article 66(d): either rehearing or dismissal. See App. Br. on Certified Issue at 10. But Carter’s brief also asserts that:
There is no statutory authority for “other trials.” The authority for such proceedings is rooted solely in this Court’s divided interpretation of the 1951 Manual for Courts-Martial in United States v. Padilla, 5 C.M.R. 31 (C.M.A. 1952), which should be expressly abandoned.
App. Br. on Certified Issue at 13. This argument is hedged by the alternative argument that even if other trials are authorized, “they are limited to situations involving jurisdictional error” (and the failure to state an offense is not jurisdictional). App. Br. on Certified Issue at 15.
Fundamentally, Carter’s argument is that if a CCA dismisses a charge – except perhaps on jurisdictional grounds – then the accused may never be recharged. The obvious problem with this argument, however, is that the charge the CCA dismissed in Carter didn’t state an offense, meaning he wasn’t charged with any offense. Accordingly, if the dismissal bars future charges, then Carter can never again be charged with anything. That’s absurd.
The Air Force Appellate Government Division didn’t file a reply brief on the certified issue, but it’s brief on the granted issues highlights a portion of the UMCJ that provides another rebuttal to Carter’s argument that other trials are only authorized in the case of jurisdictional error; a savings clause in Article 43:
(1) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations—
(A) has expired; or
(B) will expire within 180 days after the date of dismissal of the charges and specifications,
trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in paragraph (2) are met.
(2) The conditions referred to in paragraph (1) are that the new charges and specifications must—
(A) be received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications; and
(B) allege the same acts or omissions that were alleged in the dismissed charges or specifications (or allege acts or omissions that were included in the dismissed charges or specifications).
Article 43(g) (emphasis added). This UCMJ provision allows a second trial that isn’t a rehearing and doesn’t involve jurisdictional error – exactly the thing that Carter’s brief on the certified issue asserts isn’t allowed by the UCMJ.
Carter’s brief on the certified issue also argues that double jeopardy applies:
But unless the failure to state an offense is jurisdictional error and MSgt Carter’s initial court-martial was void, the statutory and constitutional prohibitions on double jeopardy would prevent MSgt Carter from being tried at “an independent de novo proceeding, not a continuation of his initial trial.”
App. Br. on Certified Issue at 17. This can’t possibly be right. Double jeopardy applies to offenses, not conduct; the Double Jeopardy Clause of the Fifth Amendment prohibits having a person “be subject for the same offence to be twice put in jeopardy. . . ” (emphasis added). Because the first charges didn’t state offenses, there was no offense for jeopardy to attach to. Put differently, if jeopardy did attach, what exactly did it attach to?
The granted issues also present tricky questions.
The first granted issue involves Carter’s right to speedy appellate review and the presumption that appellate delay is unreasonable if it “is not completed and a decision is not rendered within eighteen months of docketing the case before the Court of Criminal Appeals.” United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Both of the CCA’s reviews in Carter’s case took longer than 18 months.
The second granted issue involves the statute of limitations. The general statute of limitations in the UCMJ is five years. See Article 43. The prosecution advanced two ways around this limitation at the second trial: the savings clause in Article 43(g) (quoted above) and an exception to the 5-year limit for child abuse offenses in Article 43(b)(2)(B). But there are two problems with the application of these clauses.
The first problem is with the Article 43(g) savings clause. As quoted above, it provides an exception to the statute of limitations when the new charges are received by a summary court-martial convening within 180 days of a dismissal. The issue in Carter is when that clock starts. The second set of charges were’t received until more than 180 days after CAAF denied a petition for reconsideration of its decision affirming the CCA’s first dismissal, however they were received within 180 days of the expiration of the time to petition for certiorari. But the Government didn’t petition.
The second problem is with the Article 43(b)(2)(B) exception, however this only affects one of the two specifications. Carter’s brief concedes that the offense of indecent liberties with a child is a child abuse offense (triggering the exception), but it argues that the offense of child endangerment isn’t a child abuse offense as defined by Article 43. The Appellate Government Division’s response reproduces the specification at issue:
on divers occasions, between on or about 1 October 2007 and on or about 31 December 2007, was responsible for the care of [G.C.], a child under the age of 16 years, and did endanger the mental health, physical health, safety, and welfare of said [G.C.], by committing sexual acts with her and instructing her not to tell anyone about the said acts and that such conduct was by design, and that said conduct was of a nature to bring discredit upon the armed forces.
Gov’t Div. Br. on Granted Issues at 25 (emphasis added). I think CAAF will be skeptical that this isn’t a child abuse offense.
• AFCCA decision (2013)
• Blog post: JAG certifies
• Blog post: CAAF affirms
• AFCCA decision after retrial (2016)
• Blog post: JAG certifies
• Appellant’s (A.F. App. Gov’t Div.) Brief – Certified Issues
• Appellee’s (Carter) Brief – Certified Issues
• Appellant’s (Carter) Brief – Granted Issues
• Appellant’s (A.F. App. Gov’t Div.) Brief – Granted Issues
• Appellant’s (Carter) Reply Brief – Granted Issues
• Blog post: Argument preview