CAAF will hear oral argument in the Air Force case of United States v. Carpenter, No. 0476/AF (CAAFlog case page), on Wednesday, January 10, 2018, at 9:30 a.m. CAAF granted review of a single issue:

Whether the Air Force Court of Criminal Appeals erred in limiting the cross-examination of the complaining witness under Military Rule of Evidence 412 on an issue showing that Appellant’s subjective mistake of fact as to the complaining witness’s age was objectively reasonable.

The briefs are sealed, so there’s not much to preview. But from the Air Force CCA’s opinion (available here) we can see that Senior Airman (E-4) Carpenter was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy. Carpenter’s defense was that he mistakenly believed the boy was 16.

To prove this mistaken belief the defense sought to cross-examine the boy about the boy’s internet posts (soliciting sexual encounters) in which the boy claimed he was 18, 19, and 20 years old. But those posts were made after the encounter with the appellant. The defense also sought to introduce evidence about other men with whom the boy had sexual encounters, and also evidence that the boy was “adept at conceling his age.” Slip op. at 5. But the military judge found the evidence was not relevant in part because:

the relevant inquiry with regard to whether Appellant’s belief about JM’s age was objectively reasonable is based on the facts known to Appellant at the time of the conduct.

Slip op. at 5. The CCA concluded that:

We agree with the military judge that the proffered evidence was irrelevant to the mistake-of-fact defense. The military judge therefore did not abuse his discretion by excluding it.

Slip op. at 6.

Case Links:
AFCCA decision
• Blog post: CAAF grant
• Appellant’s brief (sealed)
• Appellee’s (A.F. Gov’t App. Div.) answer (sealed)
• Blog post: Argument preview

23 Responses to “Argument Preview: Something about the child’s apparent maturity, in United States v. Carpenter”

  1. Tami a/k/a Princess Leia says:

    Since the original Craigslist advertisement wasn’t available anymore, why not allow the subsequent ads as a reasonable substitute?  And as impeachment of the AV’s credibility to show he lied about his age?
     
    I don’t think the evidence was irrelevant at all.  Can someone please refresh my memory regarding the defense of mistake of fact regarding age?  Is it the defense has the initial burden of proving by preponderance of the evidence then the government has to disprove by BRD?  Thanks.

  2. k fischer says:

    2 years and a DD????  I would really like to read JM’s victim impact statement or the testimony of his transcripts how he was victimized by the guy he lied to about his age.  Stupid little jackass.
     
    So, I guess I’m a victim, too.  I told a 29 year old nurse, a 23 year old teacher, and a 22 year old Swiss college student on holiday at the hotel on the beach where I worked in high school as a room service waiter that I was 19, when in fact, I was only 16. And, there is no mistake of fact regarding age in Florida, so #metoo.  Ohhhhh!  I was so victimized by those women!  Where’s muh compensation?
     
    Makes me wonder whether the sentence would be diffferent if it had been Airwoman Carpenter, instead of Airman, and JM had been a straight 13 year old boy.  Heck, there probably wouldn’t have even been a trial, and JM would have been barred from post.  I really hope CAAF does the right thing because it is relevant to show the subjective belief is objectively reasonable if other men are hooking up with JM. 
     
    The only thing I can see as a problem is the technique of defense counsel getting this info out of JM on cross examination.  Because an argument could be made like, “Well, how do we know those guys subjectively believed JM.  Aren’t we asking JM to provide evidence and speculate that those men subjectively believed that he was 19?”  But, then again, do we really expect defense counsel to find these men to have them admit sexual intercourse with JM when poor Airman Carpenter is facing Court-martial for it?  Still think it has some relevance to show the Accused’s belief was objectively reasonable.

  3. Less Concerned says:

    2 years and a DD????  I would really like to read JM’s victim impact statement or the testimony of his transcripts how he was victimized by the guy he lied to about his age.  Stupid little jackass.
    So, I guess I’m a victim, too.  I told a 29 year old nurse, a 23 year old teacher, and a 22 year old Swiss college student on holiday at the hotel on the beach where I worked in high school as a room service waiter that I was 19, when in fact, I was only 16. And, there is no mistake of fact regarding age in Florida, so #metoo.  Ohhhhh!  I was so victimized by those women!  Where’s muh compensation?

    This quote is laughable at most for so many reasons and promotes a lot of stereotypes about the defense bar, some of which are apparently true.  It has no bearing on the issue before CAAF.  Regardless, a 13 year old child cannot consent, period.  And other than the obvious differences in emotional maturity and intelligence between a 6th or 7th grader and a 10th or 11th grader, a 16 year old can consent.  And, of course, if the accused says he was mistaken as to the age, then of course you assume he is telling the truth.  I’m not sure if it would have been harder or easier to defend them if all of my clients were wrongly accused just like all of those highlighted here according to comment after comment.
    Was this post was simply a way to slip in bragging about sexual conquests from 25 or 30 years ago.  Keep (re)living the dream, bro.

  4. stewie says:

    kf please tell me you see the difference between a 16-year-old (legal in many places) and a 13-year-old (legal absolutely nowhere).
     
    Because if you do, then your attempted comparison is crazy and if you don’t…oh my.
     
    Not a lot of controversy here except as to the mistake of fact question, and I agree with Tami that the defense should be allowed to put on this kind of evidence to show mistake of fact as to age…I would think the visual appearance of the boy at trial would be pretty dispositive.
     
    I was 5-9 when I was 13, I could have easily passed as 16 visually for example.

  5. RY says:

    Agree with Stewie that single-most important fact to m-o-f for age is probably how old the 13 yo actually looks, recognizing he probably dressed down for trial, maybe even put on a minecraft shirt or something for trial strategy.  I had a similar case on appeal…13yo lied about his age as well; he looked young at trial and to make matters worse, my client also picked him up from his parents house…not great facts for a m-of-f defense.  I digress.  In this case, I do think the evidence is relevant though if there is any dispute about him lying about his age (evidence he lied repeatedly about his age in craigslist postings afterwards makes the disputed fact that he lied to the accused more likely than not).  If he acknowledged lying or the evidence of it was not in dispute, I’m not sure how relevant subsequent lies with other people would be for findings.
     
    That brings me to another point: what about relevance for sentencing?  Wouldn’t him continuing to lie about his age in seeking sexual encounters with older men afterwards be particularly relevant to how impactful this really was on him?  Thus, the evidence should be considered for its harmlessness in both findings and sentencing. 

  6. DCGoneGalt says:

    I guess I wouldnt be concerned or less concerned but only reasonable concerned.
     
    The 13 year old voluntarily lied about his age repeatedly in order to have sex.  It’s quite easy to mistake a 13 year old for a 16 year old. Is he a victim?  I’d say no.  
     
    Is the evidence the kind a reasonable finder of fact would want to make a just decision?  Yes.  
     
    Do I wish I could have pulled off telling a Swiss woman I was 19 when I was 16?  Yes.  But I was too busy being the best Playstationer I could be.

  7. k fischer says:

    Less Concerned, 
     
    In Florida, the age of consent is 18, and I don’t think the Romeo Juliet exclusions were in place.  If they were, then the nurse is the only one who victimized me.  Because a 16 year old can’t consent to a 29 year old, period.  And, there is no mistake of fact defense.
     
    Stewie, I do see the difference between a 16 year old and a 13 year old.  But, if the 13 year old is able to pass as a 19 year old and is lying to people about his age to get them to sleep with him, then he’s not much of a victim.  And, some poor schmuck who falls for it shouldn’t be going to jail for 2 years and get a DD.  The different laws between the UCMJ and Florida don’t recognize a difference in the result, i.e. rape conviction and SOR. 
     
    This is where prosecutorial discretion comes into play.  I’m surprised you haven’t heard the injustice of Genarlow Wilson who at the age of 17 had consensual oral sex with a 15 year old.  In Georgia, consensual sex with a 15 year old is a misdemeanor when you are 17 based on a limited romeo juliet exception.  However, there is no exception for consensual oral sex, so Wilson got sentenced to the minimum of 10 years in prison.  So, it would have been much better had he had intercourse with her. He spent only 4 years in prison before the GA Supreme Court stopped the madness and released him because it was cruel and unusual to have treated him as an adult.  He graduated from Morehouse in 2013 with a Sociology degree.
     
    I think in Carpenter’s case prosecutorial discretion could have prevented this injustice.  Like I said above, had it been a female accused and a 13 year old male lying about his age, then I don’t think she would have been prosecuted.  I only bring up my experience because “technically” “under the laws of the state of Florida” I am a “sexual assault victim,” which I by no means am.  It certainly doesn’t mean someone should be prosecuted.  I would imagine that this prosecution was a result of JM’s parent(s)’ cognitive dissonance that their 13 going on 19 son was searching for his own private Idaho.

  8. Tami a/k/a Princess Leia says:

    This was a 13 year old who was soliciting sex on Craigslist telling everyone he was 18-20 years old, had pubic hair, had friends who drank alcohol, and it seemed there was a legitimate dispute over how old this kid looked, and shockingly (sarcasm), no one thought to take pictures of this kid during any hearings so there would be any record of what this kid looked like.
     
    It seems there was a dispute about whether Appellant’s mistake about AV’s age was both honest and reasonable.  And seems there was an issue as to what the original Craigslist ad said, so the subsequent Craigslist ads are all relevant.
     
    When I was 16, I could pass for 23.  At this point in my life, I wish I could still pass for 23, but I digress….

  9. Veteran says:

    k Fischer
     
     At a General Court-Martial in Yokosuka, Japan, YN2 Charlene Hayes, USN, was tried for sexual assault, abusive sexual contact and false official statement. On 16 November 2017, the panel of members found her guilty of false official statement and sentenced her to forfeit $1275 per month for 1 month, reduction in rank to paygrade E-4, restriction for 30 days and confinement for 30 days.  
    Because it was “ HER “

  10. k fischer says:

    Veteran, 
     
    What are the facts of US v. Charlene Hayes?  At first glance, I don’t see sexual assault of a child or abusive sexual contact with a child.  So, I’m wondering what was the age and gender of the alleged vic in that case?  If it was an underaged male vic, did he lie about his age to Charlene.
     
    If the alleged vic in US v. Hayes was an underaged boy who lied about his age to Charlene and other women in order to sleep with them, then kudos to the Yokosuka SJA’s office for their gender equality stance in the lack of exercising sound prosecutorial discretion, which resulted in her being acquitted of sexual assault and abusive sexual contact, but convicted of the horrific crime of false official statement.

  11. BP says:

    JM was involved with far more than Carpenter while his father was stationed in Okinawa. As k fischer suggested, the real emphasis behind this case was JM’s parents pushing things when it came to light that JM was having sex with multiple men on the island using Craigslist ads to do so. There were Marines involved. There were, obviously, Airmen involved. There were DoD civilians involved. JM casted a fairly wide net behind his parents’ backs, and they were none too pleased when they found out.
    One interesting thing about the Craigslist ads included the language used by JM, which was extremely explicit and seemed to be from someone very experienced in sexual relations. That is, it sounded like someone older than 13 wrote it. Unfortunately, JM’s parents found out after he met many of the men, and JM had already deleted the previous Craigslist ads. That is why many defense counsel were forced to introduce, or at least attempt to introduce, the subsequent posts. Defense was basically fighting with two hands tied behind their backs (JM deleted original post, and the judge excluded subsequent posts). Lose-lose situation there.
    Tami’s point about photos is interesting as well. To my knowledge, none were taken at any hearings held across all the cases. The photos of JM were provided by JM’s parents. Many of those photos showed the more youthful looking JM wearing his SpongeBob SquarePants shirt and playing in an arcade, as opposed to the more mature looking “real life” JM.
    Regarding the issue of mistake of fact though, I can say some of the accuseds were found guilty. Some were found not guilty. Some even pled guilty.
     

  12. k fischer says:

    Ohhhhhh! Didn’t realize that there were multiple accused’s across different branches of service. So, I would imagine that many of the guys were known, and could have joined forces to testify that they believed JM to be of age.  And, perhaps that happened which is why the briefs are sealed. 
     
    So, let’s say Carpenter had a stable of men who would testify they thought JM was 19, then, would their opinion improperly invade the factfinder’s decision regarding objective reasonableness?
     
    Regarding the photos, I think panels are becoming savvy enough to see through that crap.  I think they are aware that the Government files motions to keep out evidence they want to hear about, like 412 stuff, particularly where defense counsel quickly check no objection when they submit questions and the Government is sitting their shaking their head “no” and taking a minute to write out their objection.  Certainly panels understand that the Government makes sure the alleged vic isn’t wearing stuff to make them look older or things that would cast them in a negative light.  I once shared my opinion with a TC about women who have face piercings and my perception of their sexual proclivities because the alleged vic had face piercings.  I interviewed the alleged vic the day before trial and she had snake bites in her bottom lip, but lo and behold, she wasn’t wearing them at trial.  That was a good move, particularly if anyone felt the same way as I did.  I thought about asking why she wasn’t wearing them and whether she advised to take them out, but I didn’t.

  13. Nathan Freeburg says:

    k fischer is on to something but I don’t think it’s primarily about gender.  It’s about old fogeys not understanding digital natives.  Look, ask any high school principal off the record if they agree with the following: most American teenagers are guilty of the production and/or possession of child pornography.  They will all agree.  This is not an exaggeration.  (Most school districts are taking a delete and do not refer to the authorities position.)  There is a smaller but still sizable chunk pretending to be older than they are online (especially when gay and not out in high school — which makes sense).  Meanwhile our laws and panels are composed of older folks who got married young (and I’m 42, I just had my first personal computer in 1981 and remember the good old days of Compuserve and bulletin boards).
    k fischer’s Florida example and the reaction to it reminded me of how even many lawyers don’t realize that AoC is highly variable state to state (I knew that Florida was 18 and I don’t think they had an R&J exception when he was 16…those generally came later).  Heck, it wasn’t long ago that some Canadian provinces had it at 14 (this was seen as progressive and supporting teenage sexual empowerment…times have changed).  It’s arbitrary and it’s easy to say the answer is prosecutorial discretion but that is usually a matter of whether parents are upset and involved…or race (older black dude and younger white girl).

  14. David A Higley says:

    BP reports JM’s father was stationed in Okinawa. Who was the father, what was his rank, what was his MOS, what was his background, training and experience, what was his connection to or influence over law enforcement. BP then says JM’s parents pushing things when it came to light. What was the time line of the parents pushing (how did the parents find out, who told them (CID?) who was contacted, what was the pushing, how and when were authorities contacted).  BP then says, JM’s parents found out after he met many of the men, and JM had already deleted the previous Craigslist ads. What is the time line here: were the parents informed or was the pushing of the parents before or after JM deleted the ad? Many more questions come to mind.
     
    Check out spoliation of evidence. I wonder what the government’s role, if any, was in the deletion of the ad. Could the ad have been obtained from Craigslist? It may have been deleted, but it may have still been available.
     
    And, did Carpenter testify (perhaps in a proffer) that his recollection of the Graigslist ad he saw was similar in language, expression, or graphic detail to those ads JM later posted? 
     
    The AFCCA says both sides introduced photographs of JM, and “the Government’s photos make JM appear younger whereas Appellant’s photos make JM appear older.”  BP says the photos of JM were provided by JM’s parents.  Pushy parents providing selective photographs.  Not a good sign. One wonders what other photos the parents possessed which were not produced, and whether the investigators ever took photographs of JM (seems like pretty straightforward investigative procedure to me).
     
    There is a whole lot more to this story than the short AFCCA opinion relates.

  15. K fischer says:

    Nathan,
     
    I would posit that prosecutorial discretion allows the SVP to tell irrational parents/jilted spouses/desperate baby mom as trying to get back primary custody of their child to tell said aforementioned parties “I am employed by the US Army to represent the United States of America.  I am NOT employed by Morgan and Morgan to represent you in order to get you what you want.”
     
    Good news is that I haven’t seen a lot of these cases where mistake of fact and a lying child is involved meaning that prosecutorial discretion is being exercised properly or that all the cases wind up with acquittals.

  16. Tami a/k/a Princess Leia says:

    I suspect Craigslist is deleting some of the ads themselves, as underage sex ads are “inappropriate,” and I’m sure the parents are pushing because the trial counsel told them it doesn’t matter that the 13 year old voluntarily put himself out there and lied about his age because a 13 year old can’t consent and of course the parents can’t acknowledge they’re bad parents for being unaware that their 13 year old was doing this to begin with….
     
    Obviously parents need to get familiar with Craigslist Casual Encounters.

  17. stewie says:

    I only look at Craigslist Casual Encounters for the articles.

  18. David A Higley says:

    Tami, I agree with your observations, but AFCCA said “The actual Craigslist message to which Appellant responded was apparently no longer available and not admitted into evidence,” and BP says, “JM had already deleted the previous Craigslist ads.” This kid was advertising he was 18, 19, 20, and Craigslist probably had no idea JM was underage. My point is the ad Carpenter responded to was on Craigslist and even if it was taken down it is probably stored on the computer JM used, and at Craigslist’s computer. A forensics  computer expert should have been able to recover the ad. 
     
    AFCCA says “This turns entirely on two things: the credibility of Appellant (of course) and JM’s appearance and demeanor. Both are difficult–if not impossible–to divine from a cold reading of words in a transcript.”  DC should have packed this trial transcript with all kinds of factual information about JM–height, weight, clothes size, shoe size, trouser inseam, waist, shoulders, shirt size, neck measurement, arm length, vocabulary, word choices and apparent knowledge of sexual terms, . . .. Perhaps DC did this, but AFCCA makes no report of this evidence, and we are left to speculate on what the facts were. There were a half dozen men tricked by this kid (no pun intended), and they either did not care (which is entirely possible) or they were fooled.
     
    Several of the kid’s partners were acquitted. I wonder what was so unique about their defense that led to “not guilty”. Same kid, same offenses, different results. 

  19. stewie says:

    I’m going to guess that the kid presented at trial as very much 13…so the rest of that stuff wasn’t going to override that.

  20. David A Higley says:

    I agree. We are guessing. Not our fault. We do not have the trial transcript. The lower court did not set forth the evidence in detail. The appellate briefs are sealed. We do know sentence was adjudged on  9 December 2015, but we do not know when  the conduct was alleged to occur or how old JM was when he appeared at trial. There is no picture of JM as he appeared at trial, and the prosecution selectively presented photographs of the kid (“the Government photos make JM appear younger whereas Appellant’s photos make JM appear older”). We guess as well that TC prepped the kid for testimony, appearance, and demeanor, and we guess that the parents did as well. The kid admitted to lying to Carpenter, and Carpenter admitted the conduct occurred. The defense was mistake of fact, and the issue for review is the admissibility of post-conduct Craigslist messages to reinforce the defendant’s MOF defense.

  21. Tami a/k/a Princess Leia says:

    The 2 prongs of the MOF are “honest” which is a subjective belief, and “reasonable,” which is an objective belief.  The court seems to make a big deal about Carpenter not proving his belief was “reasonable,” and I’m sure the panel members were scratching their heads wondering how anyone could possibly mistake a 13 year old for an 18 year old.  So seems to me that if JM is telling other dudes he’s 18-20 years old, and appears 18-20 years old to these other dudes, then that is COMPLETELY relevant to Carpenter’s state of mind, regardless of whether it occurs before, during, or after his interaction with JM.  Seems more along the lines of 404b than 412, and the subsequent Craigslist ads would also come in as a substitute for the Craigslist ad Carpenter responded to.

  22. K fischer says:

    Your Princessness,
     
    Carpenter went MJ alone.

  23. Tami a/k/a Princess Leia says:

    K fischer,
     
    Doh!  That is probably the difference-maker, as far as findings go.  I think the MJ still erred in not admitting the Craigslist ads

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