CAAF will hear oral argument in the Army case of United States v. Carter, No. 19-0382/AR (CAAFlog case page), on Tuesday, February 11, 2020, after the argument in Clark. The court granted review of three discrete issues involving some unusual facts:

I. Whether trial defense counsel were ineffective for failing to introduce exculpatory evidence in their possession.

II. Whether the military judge abused his discretion by failing to order a mistrial for the charges and specifications.

III. Whether the military judge committed plain error by admitting evidence of historical cell-site location information. See Carpenter v. United States, 138 S. Ct. 2206 (2018).

Private First Class (E-3) Carter was convicted of numerous offenses by a general court-martial composed of members with enlisted representation, and sentenced to confinement for eight years and a dishonorable discharge. The convictions relate to Carter’s alleged lewd communications with underage females using the KIK messaging application and the pseudonym Julio Carter. But Carter’s brother (who was not in the military) testified telephonically during an Article 32 preliminary hearing that he – and not the appellant – was the one who sent the messages. After that, however, the brother:

ceased communicating with the parties. (JA658). As a result, the day before trial, the defense requested the military judge find [the brother] to be unavailable under Mil. R. Evid. 804(a), in order to introduce his Article 32 sworn prior testimony during trial. (JA055). The military judge granted the motion and ruled the evidence admissible. (JA055).

App. Br. at 7. Then, during opening statements at trial, Carter’s defense counsel told the members that Carter’s brother was the actual wrongdoer, and the defense promised to play the Article 32 testimony for the members:

This case is about someone else, who is not here today. Who, you will hear accepted responsibility for these actions. You will hear testimony that at the preliminary hearing the accused’s brother stated under oath, subject to a penalty of perjury, fully aware that he could be prosecuted in federal court for his crimes and said that his brother is completely innocent of these charges, that he assumed the identity of his brother to meet women. While enjoying the hospitality of his brother who let him stay with him throughout the summer of 2015. That is what this case is about.

App. Br. at 7-8 (quoting record). But, despite the military judge’s ruling that he could present the testimony, and despite promising the members that he would do so, Carter’s military defense counsel did not introduce the brother’s Article 32 testimony.

That’s just one of many remarkable situations presented in this case that the Army CCA described as “involv[ing] mistaken identity, fraternal betrayal, technological mystery, and a healthy dose of bad luck.” United States v. Carter, No. 20160770, slip op. at 1 (A. Ct. Crim. App. Mar. 28, 2019) (link to slip op.).

Beyond the issue of the brother’s testimony that he – and not the appellant – was Julio Carter, the prosecution presented the testimony of a women who not only communicated with Julio Carter, but who also met and had sexual intercourse with the person. Carter was charged with adultery in connection with that encounter. But when she was asked to identify Julio Carter at trial, the woman testified that Carter was not the person she met!

In response the prosecution alleged that the woman was bribed to misidentify Carter:

Trial Counsel: [MR], you and I have spoke [sic] before, right?

MR: Mm-hmm.

Trial Counsel: Do you remember the other day you and I talked, you told me that you were offered a thousand dollars to come in here and misidentify him?

MR: Mm-hmm.

Trial Counsel: You were offered a thousand dollars to come in here—

Defense Counsel: Objection, Your Honor.

Trial Counsel: — and say that wasn’t him, right?

Defense Counsel: Objection. 39(a).

App. Br. at 9 (quoting record) (marks in original). That information was not previously disclosed to the defense, and the military judge found that the prosecution violated its discovery obligations in a way that was “was ‘intentional’ and ‘designed to obtain an improper tactical advantage.'” (App. Br. at 9 (quoting record)). The defense requested a mistrial as a remedy, but the military judge granted it only with respect to the adultery specification. The military judge then instructed the members to disregard the testimony of MR, including her testimony that the appellant was not Julio Carter.

The prosecution also introduced cell-site location data that was obtained without a warrant. The law did not require a warrant to obtain that data at the time of the trial, and the defense did not move to suppress the data. But after trial the Supreme Court announced a new rule for such data in Carpenter v. United States, 138 S. Ct. 2206 (2018).

Carter raised each of those issues on appeal, arguing that the failure to introduce his brother’s Article 32 testimony and the failure to move to suppress the cell-site data were ineffective assistance of counsel, and that the military judge erred in denying a mistrial as to all offenses. The Army CCA disagreed, characterizing the argument as:

involv[ing] mistaken identity, fraternal betrayal, technological mystery, and a healthy dose of bad luck. The argument is ambitious and engaging, it is also wrong.

Carter, No. 20160770, slip op. at 1. The CCA focused on the defense counsel’s failure to present the brother’s Article 32 testimony, concluding that it was the correct decision because:

First, a defense counsel has an ethical duty not to knowingly present false evidence to a court-martial. Second, appellant’s defense counsel had more than a sufficient basis to conclude [the brother] lied in his testimony at appellant’s Article 32 hearing. Third, [the brother]’s lies were susceptible to factual rebuttal by evidence presented by the government.

Slip op. at 6. CAAF then granted review.

Carter’s brief assails his defense counsel’s failure to offer the brother’s testimony as wholly unjustified, outlining how the defense claimed that the brother was the true wrongdoer throughout the trial:

The defense theory of the case was that [the brother] had sent the KIK messages from a phone appellant had lent him. In support of this theory, the defense sought a pre-trial ruling from the military judge that [the brother] was unavailable, in order to play [the brother]’s Article 32, UCMJ, testimony to the panel. (JA052). After obtaining this ruling, the defense promised the panel during opening statements that they would hear [the brother]’s Article 32, UCMJ, testimony. (JA061-062). During cross-examination of the government’s DFE, the defense elicited admissions that KIK messages could synch between phones through the “cloud.” (JA346). In closing arguments, defense counsel emphasized this concession and placed the blame squarely at [the brother]’s feet: “Who else is at Fort Drum area 30 June? Julio Carter. Brother. I brought backups, iTunes, synching. That’s what we’re talking about here.” (JA395).

Despite defense counsel’s efforts to point the finger at appellant’s brother from opening statements through closing arguments, defense counsel failed to introduce the most important evidence available to bolster this strategy: [the brother]’s Article 32 testimony, where he confessed under oath and subject to cross-examination that he sent the lewd messages from a phone he had borrowed from appellant. (JA029-030).

App. Br. at 15-16.

The Government Division responds with the claim that the brother’s Article 32 testimony was false, the defense knew it was false, and defense counsel therefore had a duty to not offer it into evidence:

Defense counsel did not admit the Article 32 witness testimony because reliable, forensic evidence indicated that it was false. While attorneys must zealously represent their clients, the Rules of Professional Conduct forbid them from offering false evidence. Dep’t of Army Pam. 27-26, Legal Services: Rules of Professional Conduct for Lawyers [DA Pam. 27-26], para. 3.3(a)(4) (1 May 1992). Rule 3.3 not only forbids the introduction of evidence “that the lawyer knows to be false,” but the lawyer “may” refuse to offer evidence he “reasonably believes is false,” requiring candor toward the tribunal. (JA 721).

Gov’t Div. Br. at 17. The Government Division also argues that any error was harmless because of “a mountain of evidence.” Gov’t Div. Br. at 22.

But Carter’s reply brief highlights the defense closing argument that the brother was the true wrongdoer as proof that the defense did not believe that the brother’s Article 32 testimony was false:

The only way appellant’s brother was the culprit is if appellant’s brother sent the messages. That was the essence of [the brother]’s testimony. Thus, CPT MJ could not have argued appellant’s brother was the culprit, unless he believed (or at least did not firmly disbelieve) the brother’s confession to sending the messages.

Reply. Br. at 1-2 (emphasis in original). As for the mountain of evidence, the reply brief explains that the brother’s testimony would have undermined it:

If properly presented, the cloud synch theory would have rendered irrelevant the “mountain of evidence” that the phone CID seized had been with appellant at Fort Polk, not with [the brother] at Fort Drum. But no reasonable panel member could infer that a cloud synch was possible without hearing [the brother]’s testimony that he was in the area sending messages on an iPhone borrowed from appellant.

Reply Br. at 7.

Turning to the request for a mistrial as a remedy for the discovery violation, Carter’s brief argues that the military judge’s ruling actually made the discovery violation worse:

The military judge properly granted a mistrial on the adultery specification involving MR because “[i]f the Government had been allowed to continue its prosecution of the adultery specification, the Defense would be in the untenable position of disputing bribery claims of a witness, claims that were not disclosed until the middle of trial.” (JA622). But by not granting a mistrial for the remaining specifications, the military judge locked the defense into an even more “untenable position”: trying to show appellant was not “Julio” after he had been accused of bribing a witness into saying he was not “Julio.”

App. Br. at 30. The Government Division’s response acknowledges that the prosecution “failed to disclose the attempted bribe despite a discovery request for such information,” Gov’t Div. Br. at 31, however it argues that “given the drastic nature of a complete mistrial, the military judge’s incremental response to the discovery violation and improper questions was most appropriate,” Gov’t Div. Br. at 35. Carter’s reply brief emphasizes that the discovery violation prejudiced the entire defense case, arguing that if the allegation of bribery been disclosed, then the defense could have moved to exclude it before trial and then called MR to present clear evidence that the appellant was not Julio Carter. Reply Br. at 13.

Finally, Carter argues that the admission of the cell-site data was plain error based on the law at the time of appeal, and that “where, as here, there is a fundamental post-trial change in the analytical framework of a particular issue that opens the door to a colorable assertion of a constitutional right not previously available, forfeiture – not waiver – ensures an accused receives a fair trial free of error.” App. Br. at 38. The Government Division responds that there is no error under any standard because the defense requested the records, because the good faith exception applies, and because the Government reasonably relied on the law as it existed at the time of trial when it obtained the records. Gov’t Div. Br. at 42-48.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Disclosure: I represented the appellant in my personal capacity during review of his case by the Army CCA.

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