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
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.