CAAF decided the certified Air Force case of United States v. Carter, 76 M.J. 293, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page) (link to slip op.), on Monday, June 5, 2017. In a short opinion issued less than a month after oral argument, CAAF agrees with the Air Force CCA’s “interpretation of its own holding . . . the AFCCA did not authorize a rehearing.” Slip op. at 4. The CCA’s decision dismissing the charges with prejudice is affirmed.

Judge Ryan writes for a unanimous court.

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). The CCA reversed the findings in 2013, the JAG certified, and CAAF summarily affirmed. The case was remanded and two specifications under a new charge 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 charge should be dismissed with prejudice. The dissenting judge found that the second trial was an independent proceeding based on a totally new charge. The Judge Advocate General of the Air Force then certified the case to CAAF challenging the CCA’s dismissal, and CAAF granted review of five additional issues.

Judge Ryan’s opinion, however, only discusses the certified issue, because CAAF finds that “under these circumstances, the convening authority was not authorized to order any further proceedings.” Slip op. at 2.

The issues are:

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.

Granted Issues:
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.

The Air Force CCA’s first decision decreed that:

the findings of guilty as 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.

Slip op. at 2-3 (quoting first CCA decision). The majority in the CCA’s second decision reviewed this language and determined that:

Senior Judge Mitchell and I hold that the convening authority, upon receiving the record of trial on remand from this court, was only authorized to issue a final order effectuating our previous dismissal of the specifications. . . .
. . .
The findings of guilty of Specifications 1 and 2 of the Charge are set aside, and the Charge and those specifications are dismissed with prejudice.

Slip op. at 3 (quoting second CCA decision) (marks in original).

CAAF adopts the CCA’s interpretation of its own decision:

We recently explained that “[t]he text of Article 66(d), UCMJ, does not obligate a CCA to authorize a rehearing. The statute says that a CCA may order a rehearing; it does not say that it must.” [United States v. Atchak, 75 M.J. 193, 195 (C.A.A.F. Apr. 12, 2016) (CAAFlog case page)].

As the AFCCA majority in Appellee’s case explained: “Although the opinion contained language about a possible rehearing, it did not authorize one. If this was unclear to the Government in January 2013, then its obligation was to file for reconsideration and/or review of our decision.” Carter, 2016 CCA LEXIS 432, at *30, 2016 WL 4191494, at *10 (concluding that the first Carter holding did not authorize a rehearing). We agree with the AFCCA’s interpretation of its own holding. It is apparent from the decretal language in its first opinion that the AFCCA did not authorize a rehearing. 2013 CCA LEXIS 1, at *12, 2013 WL 376304, at *4.

Because the AFCCA did not authorize a rehearing, the convening authority was without power to order one.

Slip op. at 4. The convening authority’s power gets a short discussion, as Judge Ryan explains that Article 66(e) requires the Judge Advocate General to “instruct the convening authority to take action in accordance with the decision of the [CCA].” Slip op. at 5 (marks and emphasis in original). Here, however:

The convening authority ventured beyond the scope of the remand by ordering a rehearing where no rehearing was provided for in the remand order.

Slip op. at 5.

This would appear to mean that Carter is now free and may never be prosecuted again (by the federal government) for these offenses. That’s a somewhat difficult result to understand, considering that Carter was never actually placed in constitutional jeopardy. The first case was reversed because the specifications didn’t state offenses, and the second is now reversed because the convening authority exceeded the scope of the remand.

Judge Ryan’s opinion does give one clue about what else CAAF might be thinking:

We decline the Government’s invitation to cast this rehearing as an “other trial,” convened pursuant to R.C.M. 1107(e)(2), where the AFCCA dismissed the charges and did not authorize a rehearing pursuant to its authority under Article 66(d), UCMJ.

Slip op. at 5. 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) is a continuation of the former proceedings ordered when findings or sentence are set-aside. A new trial is available 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.

An other trial seems to be exactly what should have happened after the first CCA decision dismissing the specifications for failure to state an offense. But the processing of Carter was sloppy. Besides the vague CCA decision in 2013 (that the Air Force Appellate Government Division didn’t bother to clarify), the convening authority directed a second court-martial with the following order:

Pursuant to the authority of [Rule for Courts-Martial (R.C.M.)] 1107(f)(2), a new trial is hereby ordered.

Slip op. at 3 (marks in original) (quoting order). In a footnote Judge Ryan highlights that R.C.M. 1107(f)(2) is the wrong rule for whatever the convening authority was trying to do:

This reference to R.C.M. 1107(f)(2) is probably a typographical error. The 2012 version of R.C.M. 1107(f)(2) deals with modification of an initial action before it has been published, not new or “other” trials. It appears that the convening authority intended to refer to R.C.M. 1107(e)(2), which purports to grant a convening authority the ability to authorize an “other” trial.

Slip op. at 3 n.2. This is a charitable reading. The convening authority’s order states that “a new trial is hereby ordered,” and a new trial is (as discussed above) something different from either a rehearing or an other trial. A new trial also doesn’t apply to the facts of this case.

So CAAF ultimately declines the Government’s invitation to recast the second trial as something that the convening authority didn’t actually order.

The convening authority’s action that cited the wrong rule to do the wrong thing is the SNAFU that provides the best explanation for what otherwise seems like a windfall for Carter.

Case Links:
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
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: The CCA didn’t authorize a rehearing, it didn’t have to authorize a rehearing, and that’s all CAAF will say in United States v. Carter, Nos. 17-0079/AF & 17-0086/AF”

  1. Cloudesley Shovell says:

    “. . . for what otherwise seems like a windfall for Carter.”
    No conviction is final until appellate review is complete.  Who bears the burden throughout, until completion of appellate review?  How can that failure to sustain that burden be characterized as a “windfall” for the other party?  When a conviction is sustained on appeal on the doctrine of harmless error, is that a “windfall” for the prevailing party? 
    If it is really so that all further federal government prosecution is now barred, turn the evidence over to the appropriate state.  Encourage that sovereign to prosecute under its laws as appropriate.
    Kind regards,

  2. Thesmophoron says:

    Clearly erroneous.  How can a specification which fails to state a charge have any effect on a specification which does?  For what crime does the court suppose prejudice attached, when – by the CCA’s own ruling – no crime was stated?  This is absurd.

  3. John Marshall says:

    It is emphatically the province of the CAAF to answer the questions certified by TJAG.  Certify a silly question, get a….?

  4. Cap'n Crunch says:

    Lets see…. government makes charging decisions with good specs, and sloppily drawn bad specs, and proceeds to trial.  Government fails to prove the most serious of the charges involving good specifications, and there is a major legal snafu on one of the major charges requiring its dismissal, due to a careless Trial Counsel on the substitutions and exceptions issue.  Jeopardy has attached. 
    Bad spec charges are dismissed, but the evidence involves some of the same evidence that there was acquittals on.  Government could have asked for authorization for a retrial from the CCA, but carelessly did not do so.  Accused does over three years in the pokey in the meantime through all of the machinations that is the SNAFU of this case. 
    Some people believe that this Accused should be prosecuted again, even though he did three years in prison on the charges that have now been dismissed.  Pardon me if I think that is absurd.
    As an aside, I think the facts of this case are that WITHOUT the rehearing order, the specs, properly plead, on their own, at the time they were brought, were outside the SOL.  Even if I am wrong, there are still potential jeopardy issues.  But even if I am wrong on all of that, the simple fact is that the re-hearing was not authorized in the first instance.
    So lets look at the issues from the perspective of asking the state to charge this.
    Question 1: does a state conviction void his pension?  (Hint, look at the Hiss Act — the answer is no).  Question 2: Will a state prosecutor charge and spend the resources trying a case that is this old, that resulted in acquittals of the most serious charges in the federal case, that essentially rests on a he-said/she-said evidentiary foundation, and which will be tried before a jury?  (Not sure, but I would bet no).  Question 3: Do you think that the fact that he already did the 3 years will have bearing on what a state judge will impose if there is a conviction?  (Hint, probably).  Question 4: Are there state statute of limitations issues?  (most likely — 720 Ill. Comp. Stat. 5/3-5). 
    I am assuming the MSGT MAY be eligible for a retroactive promotion, but the more likely outcome is that he will retire in grade and receive his retirement.  Perhaps (I am assuming here), (his now? ex)-spouse and his daughter, who was the alleged victim, may be the beneficiaries of all of this in the long run.
    I would love to assume some sort of accountability on the various Government Counsel that colossally messed all this up at various stages as it progressed, but we all know that will never happen.  Congress will probably try to rewrite the law to make sure that the accused never wins on this basis again.