CAAF decided the Air Force case of United States v. Carpenter, 77 M.J. 285, No. 0476/AF (CAAFlog case page) (link to slip op.), on Tuesday, March 20, 2018. Reviewing the military judge’s restriction of the defense cross-examination of the alleged victim (based on Mil. R. Evid. 412), CAAF finds that the military judge did not abuse his discretion based on the defense argument at trial, despite the defense making a different argument on appeal. Accordingly, CAAF affirms the findings, sentence, and decision of the Air Force CCA.

Judge Ohlson writes for a unanimous court.

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 (identified by the initials J.M.). Carpenter’s defense was that he mistakenly believed the boy was at least 16. In an effort to prove this mistaken belief, Carpenter’s defense counsel filed a motion in limine seeking to present evidence of J.M.’s sexual encounters with other adult men. The military judge denied the motion, however, holding “that the evidence was inadmissible because it was not relevant to Appellant’s mistake of fact as to J.M.’s age.” Slip op. at 3.

The Air Force CCA affirmed and CAAF granted review to determine:

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.

Emphasizing that “when reviewing a military judge’s ruling for an abuse of discretion, [CAAF] pierce[s] the CCA’s opinion and examine[s] the military judge’s ruling directly,” slip op. at 3 n.5, Judge Ohlson explains that “in the context of the argument made by trial defense counsel in the motion in limine, we conclude that the military judge’s decision to exclude evidence pursuant to M.R.E. 412 was not clearly erroneous,” slip op. at 6 (emphasis added).

The heart of this decision is the following passage:

We are obligated to review a “military judge’s ruling on whether to exclude evidence pursuant to M.R.E. 412 for an abuse of discretion.” Ellerbrock, 70 M.J. at 317. That is a stringent standard of review. Moreover, our review for error is properly based on a military judge’s disposition of the motion submitted to him or her—not on the motion that appellate defense counsel now wishes trial defense counsel had submitted.

Slip op. at 6 (citations omitted). The focus on the motion made at trial, rather than the argument advanced on appeal, is dispositive because:

there is a foundational problem with Appellant’s position. Namely, the argument that Appellant now makes before this Court is not the argument he made before the military judge. Specifically, Appellant argues on appeal that “the more often J.M. successfully convinced other adult men that he was as old as he claimed to be in his on-line personal ads, the more Appellant’s subjective mistake turns objectively reasonable.” Brief for Appellant at 7, United States v. Carpenter, No. 17-0476 (C.A.A.F. Aug. 14, 2017). However, in a motion in limine at the court-martial, trial defense counsel argued that J.M.’s “sexual activity with someone other than the accused prior to the charged offense is relevant to show the alleged victim had knowledge beyond his tender years before engaging in sexual acts with the accused.”

Slip op. at 4. Put differently, Carpenter’s appellate defense counsel is challenging the military judge’s ruling with an argument not presented to the military judge. CAAF, however, reviews the military judge’s ruling based on the argument presented to the military judge.

Judge Ohlson’s opinion for the unanimous CAAF also observes that another adult (R.K.) who also had a sexual relationship with J.M. testified at trial, but Carpenter’s defense counsel did not ask that man what he thought about J.M.’s age:

Appellant now avers that the military judge abused his discretion because the judge did not permit him to ask J.M. questions regarding what J.M.’s adult sexual partners initially thought about J.M.’s age based on factors other than the Craigslist ad. And yet, when an adult male with whom J.M. had sex was on the witness stand, trial defense counsel did not even attempt to ask R.K. those types of questions.

Slip op. at 6. Put differently, Carpenter’s defense counsel had – but didn’t take – the opportunity at trial to introduce the evidence that Carpenter now complains on appeal he was denied the opportunity to present.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

5 Responses to “Opinion Analysis: Based on the defense argument at trial (not the different argument on appeal), the military judge did not abuse his discretion in United States v. Carpenter”

  1. k fischer says:

    Lesson from this opinion for trial practitioners filing motions providing notice of evidence and the admissibility of such evidence under MRE 412. 
    1.  You should list every reason under the sun, no matter how absurd those reasons sound, as to why the evidence should be admitted.  In this case, the more people who had sex with J.M., the more objectively reasonable Carpenter’s mistake of fact was.  The more men J.M. lied to about his age to men who answered the ad and engaged in a relationship with J.M., the less his credibility is on the stand when he testifies about evidence that would rebut the Defense’s assertion that Carpenter’s mistake of fact was subjectively honest.  The fact that J.M. was able to dupe so many men would rebut any argument by the Government that Carpenter was a child predator and J.M. was a victim because you know that the Government is going to argue that and refer to J.M. as a victim about a hundred times in their closing.  On sentencing, the large number of men whom J.M. duped and with whom he had anal sex mitigated the pain and impact that Carpenter’s conduct had on J.M., i.e. other people are responsible for the injuries suffered by J.M.
    2.  When the alleged victim testifies about sexual acts with one of the people you could call as a witness, in this case, R.K., then the Government has opened the door as to other sexual acts and the rule’s intended purpose to shield victims from embarrassing and degrading cross examination questions is decreased.  At that point, a request for reconsideration of the 412 motion should be made by defense counsel if the MJ makes a 403 ruling.
    3.  Know what evidence the Government is going to present and be cognizant of the arguments they are going to make based on that evidence.  Then, ponder how your 412 evidence could rebut their argument.  For example, does your 412 evidence provide an innocent explanation as to the Accused’s actions?  This is particularly important for panel cases where the panel doesn’t know about the motions in limine.  For instance, I recently had a child sex case where the MJ denied a 412 motion for one reason.  But, I knew that the Government was going to present evidence showing and argue that my client was acting like a “jealous boyfriend” by not allowing his step-daughter to have a relationship with a neighbor boy, with whom she got caught having sex at the community pool.  We filed a supplemental motion seeking to admit evidence that she had a sexual relationship with the boy to provide an innocent explanation why the client wouldn’t want his stepdaughter to have a relationship with the boy because they had sex and he didn’t want her to get pregnant.  We argued that his actions were that of a good stepfather and not a jealous boyfriend.  And, the MJ allowed in the evidence that she had sex with her boyfriend.  Client was acquitted of the Article 120 offenses.  
    4.  Don’t give up after you get an adverse MRE 412 ruling.  Call DCAP, call your Regional Defense Counsel, call a civilian defense counsel with whom you worked in the past, or call me for crying out loud if you can’t call anyone.  Some MJ’s will take the Government to task on things Defense counsel has inartfully articulated and allow you to agree with them.  Others will make Defense counsel spell out very succinctly why the evidence is admissible, and if they argue the wrong thing, then your motion is denied, even though they would have granted your motion had you said what you think they should have said.  Some MJ’s don’t know what to do, and if you don’t spell it out for them, then you lose.  In the end, it doesn’t matter what kind of Military Judge you have.  What matters is that you make the argument on the record at trial because Carpenter shows that if you fail to do so, CAAF won’t listen to you make the right one on appeal, no matter how good it is.

  2. Alfonso Decimo says:

    I greatly admire KFisher’s input generally, but I am concerned that inexperienced defense counsel may follow this advice to trial defense counsel to “list every reason under the sun, no matter how absurd those reasons sound, as to why the evidence should be admitted.” I think freshly minted JAGs probably know enough to take the proposal with a grain of salt, but as a former MJ, I sympathize with the next MJ who is confronted with this shotgun argument. I agree with KFisher that some MJs won’t know how to respond, but they need to start thinking about it and develop a plan of action, b/c such a motion would be very disruptive. I assume KFisher is simply venting some frustration with the CAAF, but practitioners should consider how shotgun motions undermine credibility, effectiveness, and civility.

  3. k fischer says:

    Wise one, 
    I greatly admire your wisdom, and after the further pontificating of my post, agree that I should have qualified the reason as “absurd, yet non-frivilous.”  The reasons I listed, I probably would not consider absurd. 
    But, it’s opinions like these that make me want to list all the reasons under the Sun on my brief, then tell the MJ that I rest on my brief, so that the error could be reviewed on appeal without CAAF being able to say, “Sorry, we can’t review that argument because your stupid lawyer made a different argument at trial.”  At that point, does the MJ have to really go through each reason on the record?  Rather than “absurd” maybe I should say, “possible non-frivilous” reason the 412 evidence might be admissible, even if the Accused does not intend to argue that particular reason at that particular time.
    So, would it have been better for Carpenter’s attorney to give notice generally because Ads and sexual conduct based on the Ads went to the objective reasonableness of the Accused’s mistake of fact?  The Defense did raise that basis under the rule.  It’s just they argued that the evidence went to show that the CW, because of the sexual activity he had with such a large number of men, had knowledge beyond his years which would have supported the Accused’s belief that he was at least 16.  But, still they quoted the right defense, i.e. the evidence goes to the subjective and objective reasonableness of Carpenter’s mistake of fact.  Because they argued “tender years” instead of “everybody else did it thinking it was legal, therefore it was objectively reasonable” then they are stuck with the former and can’t argue the latter?

  4. k fischer says:

    Edit “stupid lawyer” and change to “lawyer.”  I’m the only lawyer who should be considered stupid with the stupid posts I make.

  5. Alfonso Decimo says:

    KF – Good! I am fine with it now with those changes. Thanks! – Alex