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.