United States v. Carter
2017 CAAF LEXIS 580
| C.A.A.F. | 2017Background
- In 2010 Carter was convicted at a general court-martial of indecent acts with a child and child endangerment; one Article 120 conviction was disapproved. The convening authority approved a three-year confinement sentence.
- In 2013 the Air Force Court of Criminal Appeals (AFCCA) concluded the Article 134 charge failed to state an offense, set aside and dismissed the charge and specifications, and returned the record for remand to the Judge Advocate General.
- The convening authority later ordered a new trial, referring essentially identical Article 134 charges that added an explicit “service-discrediting” element, and Carter was convicted at a second court-martial in 2014.
- On appeal AFCCA held the second referral was void because AFCCA’s original 2013 decision had dismissed the charges and did not authorize a rehearing; it set aside the second conviction and dismissed the charges with prejudice.
- The Judge Advocate General certified whether AFCCA erred in finding the convening authority exceeded the scope of the remand by ordering the second trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the convening authority could order a new/“other” trial after AFCCA set aside and dismissed charges without ordering a rehearing | Government: Relying on R.C.M. 1107(e)(2), the convening authority had authority to order an “other” trial on remand | Carter: AFCCA dismissed charges without authorizing rehearing; convening authority lacked power to order any further proceedings | Court: AFCCA did not authorize a rehearing; Article 66(d) makes rehearing discretionary for CCA — because AFCCA dismissed and did not order a rehearing, convening authority lacked power to order further trial; second court-martial exceeded remand and was void |
Key Cases Cited
- EV v. United States, 75 M.J. 331 (C.A.A.F.) (standard of review for jurisdiction and statutory interpretation)
- Atchak v. United States, 75 M.J. 193 (C.A.A.F.) (Article 66(d) permits but does not require a CCA to order rehearing)
- United States v. Montesinos, 28 M.J. 38 (C.M.A.) (convening authority loses jurisdiction after publishing action; on remand authority is limited to remand scope)
- United States v. Riley, 55 M.J. 185 (C.A.A.F.) (a lower court may not exceed the scope of a remand)
- United States v. Carter, 72 M.J. 457 (C.A.A.F.) (prior AFCCA disposition setting aside and dismissing the charge affirmed)