CAAFlog » October 2019 Term » United States v. Carter

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Clark, No. 19-0411/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Carter, No. 19-0382/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

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.).

Read more »