IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES. UNITED STATES, Appellee, Master Sergeant(E-7) PATRICK CARTER, USAF Appellant.

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1 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES 19 September 2012 UNITED STATES, Appellee, v. Master Sergeant(E-7) PATRICK CARTER, USAF Appellant. Crim. App. No. USCA Misc. Dkt. No. /AF PETITION FOR WRIT OF HABEAS CORPUS, OR WRIT OF MANDAMUS LUKE D. WILSON, Capt, USAF Appellate Defense Counsel USCAAF Bar No Appellate Defense Division Air Force Legal Operations Agency United States Air Force 1500 Perimeter Road Joint Base Andrews NAF, MD (240) i

2 INDEX Table of Authorities iii Preamble Statement of Jurisdiction I. History of the Case II. Reasons Relief Not Sought Below III. Relief Sought IV. Issues Presented A. WHETHER PETITIONER IS ENTITLED TO IMMEDIATE RELEASE BECAUSE HIS CONFINEMENT IS SOLELY BASED ON TWO ARTICLE 134 SPECIFICATIONS THAT, UNDER UNITED STATES V. HUMPHRIES, 71 M.J. 209 (C.A.A.F. 2012), MUST BE SET ASIDE B. WHETHER PETITIONER IS ENTITLED TO EXTRAORDINARY RELIEF WHERE HIS CASE HAS BEEN PENDING BEFORE THE AIR FORCE COURT OF CRIMINAL APPEALS FOR MORE THAN 24 MONTHS AND THE AIR FORCE COURT HAS DENIED MULTIPLE MOTIONS FOR EXPEDITED DECISION V. Statement of Facts VI. Reasons Why the Writ Should Issue ISSUE A Standard of Review Law and Analysis ISSUE B Standard of Review ii

3 Law and Analysis Conclusion VII. Respondents Contact Information iii

4 TABLE OF AUTHORITIES United States Supreme Court Cases Clinton v. Goldsmith, 526 U.S. 520 (1999)... 3 FTC v. Dean Foods Co., 384 U.S. 597 (1966)... 3 Noyd v. Bond, 395 U.S. 683 (1969)... 3 Court of Appeals for the Armed Forces Cases Diaz v. The Judge Advocate General of the Navy, 59 M.J. 34 (C.A.A.F. 2003) Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004)...11, 12 United States v. Humphries 71 M.J. 209 (C.A.A.F. 2012)...4, 6, 9, 10 United States v. Moreno 63 M.J. 129 (C.A.A.F. 2006) , 2, 9, 11, 12 Courts of Criminal Appeals Case United States v. Bazar, ACM (A.F. Ct. Crim. App. 29 June 2012) Other Jurisdiction Cases In re Tennant, 359 F. 3d 523 (D.C. Cir. 2004)... 3 United States v. Smith, 94 F. 3d 204 (6th Cir. 1996) United States Code 28 U.S.C. Article iv

5 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES In re PATRICK CARTER, Master Sergeant (E-7), United States Air Force Petitioner, ) ) v. ) ) The United States, ) ) USCA Misc. Dkt. No. United States Air Force ) Court of Criminal Appeals, ) ) and Commander, United States ) Naval Consolidated Brig ) Miramar, California ) Respondents. ) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Preamble On 3 July 2012, Petitioner asked this Honorable Court to issue a writ of habeas releasing Petitioner from confinement or, in the alternative, a writ of mandamus directing the Air Force Court of Criminal Appeals (AFCCA) to timely review his case and issue an opinion. The petition was denied. ) PETITION FOR FOR EXTRAORDINARY ) RELIEF IN IN THE THE NATURE OF OF A A ) WRIT OF OF PROHIBITION HABEAS CORPUS OR, IN THE ALTERNATIVE, WRIT OF MANDAMUS In the over two months since the petition was denied, the AFCCA has still not issued an opinion. Despite the mandates of Moreno, Petitioner s case has now languished before the AFCCA -- while Petitioner has languished in confinement -- for more than 24 months. The AFCCA has denied multiple requests for expedited review. The delay in Petitioner s case is part of a systemic

6 pattern of appellate delay in Air Force cases reminiscent of the similar pattern in naval cases that led to this Court s Moreno decision as well as congressional attention to the problem of military appellate delay. This Court recently issued a show cause order to the AFCCA based upon a petition for writ of mandamus that was filed with this Court on 5 September See In re Timothy L. Merritt, No /AF. When the Meritt petition was filed, there were 69 fully briefed cases pending before the Air Force Court that exceed the Moreno 18-month post-trial processing standard. In the two weeks since that petition was filed, the number has grown to 83. Petitioner hereby prays for an order directing the Petitioner s immediate release from the U.S. Naval Consolidated Brig, Miramar, California. Because his confinement is illegal, Petitioner respectfully requests that this Court order the requested relief immediately, without issuing a show cause order and without waiting for a brief from the Government. In the alternative, Petitioner respectfully requests the issuance of a writ of mandamus ordering Respondent AFCCA to timely review his case and issue an opinion. 2

7 Statement of Jurisdiction [M]ilitary appellate courts are among those empowered to issue extraordinary writs under the [All Writs] Act. Clinton v. Goldsmith, 526 U.S. 529, 534 (1999) (citing Noyd v. Bond, 395 U.S. 683, 695, n.7 (1969)). The All Writs Act, 28 U.S.C. 1651, gives power for an appellate court to issue process in aid of that court s jurisdiction. Goldsmith, 526 U.S. at Because this case involves an accused whose approved sentence includes four years confinement and a dishonorable discharge, this case falls within this Court s appellate jurisdiction, thus providing this Court with jurisdiction to grant relief under the All Writs Act, 28 U.S.C. 1651(a). See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, (1966); In re Tennant, 359 F.3d 523, 528 (D.C. Cir. 2004). I. History of the Case Petitioner pled not guilty to four specifications of Article 120, UCMJ, two specifications of Article 125, UCMJ, and two specifications of Article 134, UCMJ. Of the eight total specifications, he was acquitted of all except one Article 120 specification and both of the Article 134 offenses. Of the three specifications Petitioner was found guilty of, the convening authority disproved the Article 120 conviction, thus leaving only the two Article 134 specifications to justify 3

8 the convening authority s approval of Petitioner s sentence of, among other punishments, three years confinement. On 26 August 2010 (24 months and 24 days ago), Petitioner s case was docketed with the AFCCA. Petitioner has been confined for this entire period. Although his minimum release date was August 2012, he continues to be confined. On 18 August 2011, Petitioner filed an Assignment of Errors at the Air Force Court of Criminal Appeals (AFCCA) alleging, among other issues, that the Article 134 specifications... fail to state an offense because they allege a violation of article 134 but fail to allege any of Article 134 s three terminal clauses. See Appendix A. On 6 October 2011, Petitioner submitted a motion to AFCCA to expedite the review of Petitioner s case. See Appendix B. On 14 October 2011, AFCCA denied the motion. See Appendix C. When this Honorable Court issued its opinion in United States v. Humphries on 15 June 2012, Petitioner s case was still pending at the AFCCA. On 21 June 2012, Petitioner submitted a second motion to expedite review of his case. See Appendix D. On 2 July 2012, AFCCA denied the motion. See Appendix E. On 3 July 2012, Petitioner asked this Court to issue a writ of habeas releasing him from confinement, or, in the alternative, a writ of mandamus directing the AFCCA to timely review his case and issue an opinion. See Appendix J. The 4

9 petition was denied. Id. As of the time of the instant filing 68 days after this Court denied his initial petition -- Petitioner is still confined and the AFCCA has not issued an opinion in his case. II. Reasons Relief Not Sought Below Petitioner has sought relief from AFCCA in the form of a direct appeal and two motions for expedited decision. See Appendix A. His case has now been pending before the Air Force Court for more than 24 months. By denying Petitioner s 21 June 2012 motion for expedited review, the AFCCA has demonstrated its unwillingness to issue a timely review even in the face of controlling case law that affords him complete relief and dictates his release from confinement. Other than an extraordinary writ similar to this one, Petitioner has exhausted his potential remedies to obtain his immediate release. III. Relief Sought Petitioner respectfully requests this Honorable Court issue a writ of habeas corpus and order Petitioner s immediate release from the U.S. Naval Consolidated Brig, Miramar, California. In the alternative, Petitioner respectfully requests this Court issue a writ directing AFCCA to expedite its review of Petitioner s case. 5

10 IV. Issues Presented A. WHETHER PETITIONER IS ENTITLED TO IMMEDIATE RELEASE BECAUSE HIS CONFINEMENT IS SOLELY BASED ON TWO ARTICLE 134 SPECIFICATIONS THAT, UNDER UNITED STATES V. HUMPHRIES, 71 M.J. 209 (C.A.A.F. 2012), MUST BE SET ASIDE. B. WHETHER PETITIONER IS ENTITLED TO EXTRAORDINARY RELIEF WHERE HIS CASE HAS BEEN PENDING BEFORE THE AIR FORCE COURT OF CRIMINAL APPEALS FOR MORE THAN 24 MONTHS AND THE AIR FORCE COURT HAS DENIED TWO MOTIONS FOR EXPEDITED DECISION. V. Statement of Facts On and February 2010, Petitioner was tried by general court-martial composed of officer members at Scott AFB, IL. The Charges and Specifications on which he was arraigned, his pleas, and the findings of the court-martial are as follows: Chg Art Spc Summary of Offense P F I 120 NG G 1 Did, in CONUS, b/o/a 1 Jan 05 & o/a 7 Mar NG NG 07, rape GC, a person under the age Did, in CONUS, b/o/a 8 Mar 07 & o/a 30 NG NG Sep 07, rape GC, a person who had attained the age of 12 but was under the age of Did, in CONUS, o/d/o, b/o/a 1 Oct 07 & o/a 31 Dec 07, engage in a sexual act, to wit: digitally penetrating the genital opening of GC, a child who had attained NG NG 6

11 Chg Art Spc Summary of Offense P F the age of 12 years, but had not attained the age of 16 years. 4 Did, in CONUS, o/d/o, b/o/a 1 Oct 07 to o/a 8 Apr 08, take indecent liberties in the physical presence of GC, a female under 16 years of age, by touching her anus & rubbing & biting her breasts, with the intent to gratify the sexual desire of MSgt Carter. NG G NG NG 1 Did, in CONUS, o/d/o, b/o/a 1 Jan 05 & NG NG o/a 7 Mar 07, commit sodomy with GC, a child under the age of Did, in CONUS, o/d/o, b/o/a 8 Mar 07 & o/a 31 Dec 07, commit sodomy with GC, a child who had attained the age of 12 but was under the age of 16. NG NG 134 NG G 1 In CONUS, o/d/o, b/o/a 1 Oct 07 & o/a 31 Dec 07, was responsible for the care for GC, a child under the age of 16 years, & did endanger the mental health, physical health, safety & welfare of said GC, by committing sexual acts with her & instructing her not to tell anyone about the said acts & that such conduct was by design. 2 Did, in CONUS, o/d/o, b/o/a 1 Jan 05 & o/a 30 Sep 07, commit indecent acts upon the body of GC, a female under the age of 16 years, not the wife of the said MSgt Patrick Carter, by rubbing & biting her breasts, rubbing her genitals with his hand, & digitally penetrating her vagina & anus with intent to gratify the sexual desires of the said MSgt Patrick Carter. NG G NG G 2 1 The members found Petitioner guilty, except the words, touching her anus and rubbing and biting her breasts, substituting therefore the words, rubbing, licking, and biting the breasts, of the excepted words not guilty. The Convening Authority later disproved the finding at action. 2 The members found Petitioner guilty except the words, digitally penetrating her vagina. 7

12 The prosecution s opening statement never mentioned which clause it intended to prove the Article 134 specifications. R ; Appendix F. Nor did the Government mention the Article 134 specifications during opening statement. Id. Additionally, the Government neither presented any specific evidence nor called any witness to testify as to why Petitioner s conduct satisfied any clause of Article 134. The Government did not attempt to tie any evidence to the Article 134 specifications during closing arguments. R , ; Appendix F. Additionally, during closing, the Government did not mention what clause it was attempting to use to prove the Article 134 specifications, nor did it mention the Article 134 specifications at all. Id. On 26 February 2010, the members sentenced Petitioner to a dishonorable discharge, confinement for four years, forfeiture of all pay and allowances, and reduction to E-1. R. 696; Appendix F. On 19 August 2010, the convening authority disapproved the finding of guilty to Specification 4 of Charge I, approved the remainder of the findings, and approved only so much of the sentence that provided for a dishonorable discharge, three years confinement, total forfeitures of all pay and allowances, and reduction to E-1. Petitioner is still confined. VI. 8

13 Reasons Why the Writ Should Issue A. Standard of Review Whether a specification is defective and the remedy for such error are questions of law, which [this Court reviews] de novo. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (citations omitted). Law and Analysis United v. Humphries is directly on point, controls Petitioner s case, and dictates dismissal of the only specifications holding Petitioner in confinement. Just like the appellant in Humphries, Petitioner contested the Article 134 specifications, and a review of the record shows that there was nothing during the Government s case-in-chief that placed Petitioner on notice of the Government s theory as to which clause or clauses of the terminal element of Article 134 he had violated. Thus, the sole authority by which Petitioner is confined derives from two flawed specifications that will be set aside once reviewed; Petitioner s confinement, therefore, is illegal. Because of this, each day Petitioner is held in confinement without his case being reviewed is a day of irreparable harm to him. Despite this, and even though his case is already well past the 18-month Moreno post-trial process standard, the AFCCA 9

14 refused to expedite the review of his case. Further, this denial came mere days after AFCCA issued the unpublished opinion United States v. Bazar, ACM (A.F. Ct. Crim. App. 29 June 2012), in which the AFCCA recognized the application of Humphries to cases like Petitioner s. See Appendix G. It is appropriate for this Court to issue the writ of habeas corpus to discontinue Petitioner s illegal confinement. B. Standard of Review Mandamus petitions are subject to a stringent standard of review--in order to grant mandamus relief, an appellate court must find a clear legal error calling for relief that can be obtained through no other means. Delalla v. Hanover Ins., 660 F.3d 180, 183 n.2 (3d Cir. 2011) (quoting Gold v. Johns Manville Sales Corp., 723 F.2d 1068, 1074 (3d Cir.1983)). Law and Analysis Even though Petitioner s case is already more than a year past the 18-month Moreno post-trial processing standard, the AFCCA has repeatedly refused to expedite the review of his case. It is appropriate for this Court to issue a writ of mandamus to protect Petitioner from further violation of his due process right to reasonably prompt appellate review. The Air Force Court been unwilling to end the unreasonable appellate delay in this case. A petition for extraordinary relief to this Court is 10

15 Petitioner s only remaining means to seek to end the ongoing violation of his due process right to be free from unreasonable appellate delay. A military accused s right to a full and fair review of his findings and sentence under Article 66 embodies a concomitant right to have the review conducted in a timely fashion. Additionally, [a military accused] has a constitutional right to a timely review guaranteed him under the Due Process Clause. Diaz v. The Judge Advocate General of the Navy, 59 M.J. 34, (C.A.A.F. 2003) (per curiam); see also Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004) (per curiam). Petitioner has been deprived of that right and the Air Force Court has denied his request to remedy that deprivation by deciding his case expeditiously. Petitioner s case is not an isolated example of unreasonable appellate delay. Of the 101 cases in which an issue was raised that AFCCA decided upon initial direct review between 1 June 2011 and 31 August 2012, 40 (39.6%) took longer than 18 months from docketing to render decision. See Appendix H. Petitioner s case is yet another in which the Air Force Court has exceeded the 18-month Moreno post-trial processing standard. See United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Currently, there are 83 fully briefed cases pending before the Air Force Court that have already exceeded 11

16 the 18-month Moreno post-trial processing standard. See Appendix I. Thus, like Moreno, this is not an isolated case that involves excessive post-trial delay issues. Id. Rather, unreasonable appellate delay has become endemic in the Air Force s appellate system. Further, Petitioner is directly harmed by both that endemic delay and by the Air Force Court s refusal to expedite consideration of his case even after over 24 months have elapsed since docketing. As this Court has observed, An appeal that needlessly takes ten years to adjudicate is undoubtedly of little use to a defendant who has been wrongly incarcerated on a ten-year sentence. Toohey, 60 M.J. at 102 (quoting United States v. Smith, 94 F.3d 204, 207 (6th Cir. 1996)). Similarly, an appeal that has already taken two years, six months, and 24 days from the date the sentence was adjudged is of diminishing value to an accused wrongly incarcerated on a three-year sentence. Appellate delay of the kind that this case exemplifies is demonstrably harmful to the military justice system s reputation. For example, in 2009, the Senate Armed Services Committee sharply criticized the Department of the Navy for longstanding problems with the processes for preparation of records of courts-martial and for appellate review of courtmartial convictions. S. Rep. No , at 131 (2009). The 12

17 Committee stated that cognizant legal authorities in the Department of the Navy have not taken necessary and appropriate steps to ensure that the resources, command attention, and necessary supervision have been devoted to the task of ensuring that the Navy and Marine Corps post-trial military justice system functions properly in all cases. Id. at 132. The Committee directed the Department of Defense s Inspector General to analyze the problem. Id. The resulting report was highly critical of post-trial processing in the Department of the Navy. See Inspector General, Department of Defense, Evaluation of Post-Trial Reviews of Courts-Martial within the Department of the Navy (Report No. IPO2010E003) (Dec. 10, 2010), available at df. The National Defense Authorization Act for Fiscal Year 2010 subsequently created an independent panel to study, among other issues, the performance of the Navy and Marine Corps in providing legally sufficient post-trial processing of cases in general and special courts-martial. National Defense Authorization Act for Fiscal Year 2010, Pub. L. No , 506, 123 Stat. 2190, 2278 (2009). As this case and many other similar cases demonstrate, the Air Force is now experiencing the same sort of systemic delay that led to such harsh criticism of the naval justice system. This Court should grant the requested writ of mandamus in part to prevent the military justice system 13

18 from being subjected to another round of criticisms of the sort that the naval justice system previously endured. Thus, this Court should issue a writ of mandamus ordering the Air Force Court to decide Petitioner s case immediately. Conclusion For the foregoing reasons, this Honorable Court should issue the requested writ of habeas corpus. In the alternative, this Court should issue a writ of mandamus requiring the AFCCA to expeditiously decide Petitioner s case. VII. Respondents Contact Information (1) Respondent United States is represented by the Air Force Government Trial and Appellate Counsel Division (JAJG). That Division s mailing address is: 1500 W. Perimeter Road, Suite 1190 Joint Base Andrews, MD That Division s telephone number is (240) That Division s facsimile number is (240) (2) Respondent United States Air Force Court of Criminal Appeals mailing address is: 1500 W. Perimeter Road Joint Base Andrews, MD That Court s telephone number is (240) That Court s facsimile number is (240)

19 (3) Respondent Commander, United States Naval Consolidated Brig, Miramar, California, mailing address is: Naval Consolidated Brig Miramar Way P.O. Box San Diego, CA The commander s telephone number is The commander s facsimile number is Respectfully Submitted, LUKE D. WILSON, Capt, USAF Appellate Defense Counsel Air Force Legal Operations Agency United States Air Force (240)

20 Certificate of Compliance With Rule 27(a)(1) 1. This brief complies with the type-volume limitation of Rule 27(a)(1) because this brief contains 16 pages. 2. This brief complies with the typeface and type style requirements of Rule 37 because it has been prepared in monospaced typeface using Microsoft Word s Courier New font, size 12. LUKE D. WILSON, Capt, USAF Attorney for Petitioner 19 September

21 CERTIFICATE OF FILING AND SERVICE I certify that a copy of the foregoing was electronically mailed to the Air Force Court of Criminal Appeals, to the Director of Air Force Government Trial and Appellate Counsel Division, and to the Commander United States Naval Consolidated Brig, Miramar, California, on 19 September PAUL M. BRAUN, TSgt, USAF AFLOA/JAJA 1500 W. Perimeter Road, Suite 1100 Joint Base Andrews, MD (240)

22 APPENDIX A

23 IN THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES ) ASSIGNMENT OF OF ERRORS Appellee, ) ) Before Panel No. v. ) ) ACM Master Sergeant (E-7) ) PATRICK CARTER, ) Tried at at Scott AFB, IL IL on on 16-18, United States Air Force, ) February 2010, by by General court- Court- Appellant. ) martial Martial convened by by HQ HQ AF/CC (AMC) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS: Issues Presented I. DO THE SPECIFICATIONS UNDER CHARGE III FAIL TO STATE AN OFFENSE BECAUSE THEY ALLEGE A VIOLATION OF ARTICLE 134 BUT FAIL TO ALLEGE ANY OF ARTICLE 134 S THREE TERMINAL CLAUSES? II. DID THE MILITARY JUDGE ERR TO THE PREJUDICE OF APPELLANT BY FAILING TO ISSUE A MANDATORY INSTRUCTION TO THE MILITARY PANEL IN ORDER TO CURE TRIAL COUNSEL S IMPROPER PROPENSITY ARGUMENT DURING FINDINGS? III. WAS APPELLANT ERRONEOUSLY DEPRIVED OF HIS RIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGE CLOSED THE COURTROOM WITHOUT USING THE PROPER PROCEDURES? IV. WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO SPEEDY POST-TRIAL REVIEW WHEN 174 DAYS

24 ELAPSED BETWEEN THE DATE OF SENTENCING AND THE DATE THE CONVENING AUTHORITY TOOK ACTION? 1 V. WAS APPELLANT S CONVICTION LEGALLY AND FACTUALLY SUFFICIENT? 2 VI. DID APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL? 3 Summary of Proceedings On and February 2010, Appellant was tried by general court-martial composed of officer members at Scott Air Force Base, Illinois. The Charges and Specifications on which he was arraigned, his pleas, and the findings of the court-martial are as follows: Chg UCMJ Spec Summary of Offense Plea Finding Art I 120 NG G 1 Did, in the continental United States, b/o/a 1 NG NG Jan 05 and o/a 7 Mar 07, rape GC, a person under the age Did, in the continental United States, b/o/a 8 NG NG Mar 07 and o/a 30 Sep 07, rape GC, a person who had attained the age of 12 but was under the age of Did, in the continental United States, on divers NG NG occasions, b/o/a 1 Oct 07 and o/a 31 Dec 07, engage in a sexual act, to wit: digitally penetrating the genital opening of GC, a child who had attained the age of 12 years, but had not attained the age of 16 years. 4 Did, in the continental United States, on divers occasions, b/o/a 1 Oct 07 to o/a 8 Apr 08, take indecent liberties in the physical presence of NG G by exceptions and 1 This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 2 This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 3 This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 2

25 Chg UCMJ Art Spec Summary of Offense Plea Finding GC, a female under 16 years of age, by touching her anus and rubbing and biting her breasts, with the intent to gratify the sexual desire of MSgt Carter. substitutions NG NG 1 Did, in the continental United States, on divers NG NG occasions, b/o/a 1 Jan 05 and o/a 7 Mar 07, commit sodomy with GC, a child under the age of Did, in the continental United States, on divers occasions, b/o/a 8 Mar 07 and o/a 31 Dec 07, commit sodomy with GC, a child who had attained the age of 12 but was under the age of 16. NG NG 134 NG G 1 In the continental United States, on divers occasions, b/o/a 1 Oct 07 and o/a 31 Dec 07, was responsible for the care for GC, a child under the age of 16 years, and did endanger the mental health, physical health, safety and welfare of said GC, by committing sexual acts with her and instructing her not to tell anyone about the said acts and that such conduct was by design. 2 Did, in the continental United States, on divers occasions, b/o/a 1 Jan 05 and o/a 30 Sep 07, commit indecent acts upon the body of GC, a female under the age of 16 years, not the wife of the said MSgt Patrick Carter, by rubbing and biting her breasts, rubbing her genitals with his hand, and digitally penetrating her vagina and anus with intent to gratify the sexual desires of the said MSgt Patrick Carter. NG NG G G by exceptions and substitutions 5 4 The members found Appellant guilty, except the words, touching her anus and rubbing and biting her breasts, substituting therefore the words, rubbing, licking, and biting the breasts, of the excepted words not guilty. The Convening Authority later disproved the finding at action. 5 The members found Appellant guilty except the words, digitally penetrating her vagina. 3

26 The members sentenced Appellant to a dishonorable discharge, confinement for four years, forfeiture of all pay and allowances, and reduction to E-1. R On 19 August 2010, the convening authority disapproved Specification 4 of Charge I, approved the remainder of the findings, and approved only so much of the sentence that provided for a dishonorable discharge, three years confinement, total forfeitures of all pay and allowances, and reduction to E-1. Statement of Facts Appellant had served in the Air Force for over 24 years when he was accused of committing sexual acts upon his minor daughter, GC. See Charge Sheet and Pros Ex 2. The alleged acts came to light when some of GC s fellow seventh-grade classmates overhead GC speaking about being inappropriately touched by Appellant and reported it to GC s teacher. R The teacher questioned GC and then brought her to the school s social worker where additional questions were asked. R GC was eventually taken to the civilian police where the investigation against Appellant continued. R Motions practice began on 16 February R. 14. The defense moved to compel the production of the mental health records of GC and her mother, Yolanda. R. 16. The military judge held a closed hearing pursuant to the motion. R. 22. Although the hearing was closed, it is unclear who moved for the closure, what the justification was for the closure, and whether the closure was necessary. R. 22. After a continuance, the government s case in chief began on 24 February R The government called GC to the stand and asked her a series of questions regarding Appellant s alleged actions with her. See R. 335 et seq. Trial counsel asked her a number of questions regarding details such as comments Appellant allegedly made to her ( Does it feel good, R. 343), his alleged habits with her breasts (rubbed her chest in a circular motion, R. 339), his 4

27 alleged use of his mouth ( He would sometimes bite my nipples. R 345) as well as the locations where the alleged acts occurred ( he told me to lay down on the floor R. 341; I remember dad coming into my bedroom and telling me to lie on the floor, R. 347). The government also called Yolanda Beavers as part of its case in chief. R Ms. Beavers is GC s mother and was Appellant s wife at the time of the alleged offenses. R During her testimony, the trial counsel asked Ms. Beavers a series of questions regarding Appellant s sexual character. Trial counsel s questions centered around comments Appellant sometimes made to Ms. Beavers during typical sexual foreplay ( Do you want me to stop? ), his habits with Ms. Beavers breasts (touching Ms Beaver s breasts in a circular motion), the use of his mouth (placing it onto her breast and moving his tongue in a circular motion and sucking), as well as his preferred locations for having sex (the bed and floor of the bedroom). R Trial defense counsel made no objection. R During closing arguments the trial counsel made the following argument: Think about where this occurred. On the floor of the room. That s important. Think about the testimony. Why is that important? Because that s one of the places that he liked to have sex with her mom, on the floor. Think about that. Think about the routine, the foreplay, the similarities. What was his routine with Mom? You heard Ms. Beavers testify that he liked breasts, that he was rubbing and putting his mouth on breasts as part of his foreplay, oral sex, and then intercourse. That s just how things progressed with his daughter. Appellant s court martial ended on 26 February R The convening authority initially took action on his case on 2 July See Court Martial Order. On 12 July 2010, a member of the convening authority s legal office created a memorandum for record (MFR) explaining why action was not taken on Appellant s case within 120 days. See Record of Trial, vol 1, MFR entitled Action not within 120 days from Completion of Trial, dated 12 July

28 According to the MFR, although the convening authority s legal office had Appellant s clemency submission on time in an electronic format, the Staff Judge Advocate did not present it to the convening authority until they received it from Appellant in a hard copy format. Id. The convening authority s 2 July 2010 action was later withdrawn and replaced 48 days later on 19 August See Court Martial Order. Argument I. THE SPECIFICATIONS UNDER CHARGE III FAIL TO STATE AN OFFENSE BECAUSE THEY ALLEGE A VIOLATION OF ARTICLE 134 BUT FAIL TO ALLEGE ANY OF ARTICLE 134 S THREE TERMINAL CLAUSES. Standard of Review The question of whether a specification states an offense is a question of law, subject to de novo review. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006). Law and Analysis The issue of whether a specification fails to allege an offense is not waived even if not raised at the trial level. See Rule for Courts-Martial 905(e), Manual for Courts-Martial, United States (2008 ed.). But where the adequacy of a specification is challenged for the first time on appeal, military appellate courts will liberally construe the specification in favor of validity. United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986). To adequately allege an offense, a specification must (1) notify the accused of the offense charged, (2) contain the elements of the offense either expressly or by fair implication, and (3) together with the record of trial, bar any subsequent prosecution in the event of acquittal 6

29 or conviction. United States v. Conway, 40 M.J. 859, 861 (A.F.C.M.R. 1994). Where a specification is challenged for the first time on appeal, the appellant must show substantial prejudice, demonstrating that the charge was so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had. United States v. Bryant, 30 M.J. 72, 73 (C.M.A.1990) (quoting Watkins, 21 M.J. at 210). Article 134, the General Article, criminalizes three categories of conduct not specifically mentioned in this chapter : (1) all disorders and neglects to the prejudice of good order and discipline in the armed forces ; (2) all conduct of a nature to bring discredit upon the armed forces ; and (3) crimes and offenses not capital. Article 134, Uniform Code of Military Justice, 10 U.S.C While Charge III states that it alleges a Violation of the UCMJ, Article 134, see Charge Sheet, its specifications fail to allege that Appellant s conduct prejudiced good order and discipline, was of a nature to bring discredit to the armed forces, or constituted a crime or offense not capital. When the Government fails to expressly or by necessary implication allege at least one of the three terminal clauses of Article 134, the charge and specification fails to state an offense. United States v. Fosler, M.J. No (C.A.A.F. 8 Aug 2011). The Article 134 specifications in this case fail to state an offense because they do not allege any element of a violation of Article 134, either expressly or by fair implication. Appellant was prejudiced as a result of being found guilty of a specification that was legally defective. The proper remedy for this Issue is to set aside the finding of guilty to Charge III and its specifications and to dismiss that charge and its specifications. See, e.g., United States v. Sutton, 68 M.J. 455 (C.A.A.F. 2010). Accordingly, this Court should set aside the finding of guilty to Charge III and its specifications, and dismiss that charge and its specifications. 7

30 II. THE MILITARY JUDGE ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO ISSUE A MANDATORY INSTRUCTION TO THE MILITARY PANEL IN ORDER TO CURE TRIAL COUNSEL S IMPROPER PROPENSITY ARGUMENT DURING FINDINGS. Standard of Review Failure to object to an instruction or to omission of an instruction before the members close to deliberate on the sentence constitutes waiver of the objection in the absence of plain error. Rules for Courts Martial 1005(f). However, mandatory instructions are reviewed de novo. See United States v. Miller, 58 M.J. 266, (C.A.A.F. 2003). Instructions curing improper comments made by trial counsel are mandatory instructions. See generally United States v. Rhodes, 64 MJ 630, 633 (A.F.Ct.Crim.App. 2007)(quoting United States v. Rutherford, 29 M.J. 1030, 1031 (A.C.M.R.1990). Therefore, the standard of review is de novo. Law and Analysis Counsel should limit their arguments to the evidence of the record, as well as all reasonable inferences fairly derived from the evidence. United States v. Burton, 67 M.J. 150, 152 (C.A.A.F 2009)(citing United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). The Government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within [the] rules of evidence, such as MRE 404 or 413. Burton at 152. Therefore, arguing modus operandi or propensity evidence in closing without using a proper exception is not a reasonable inference[ ] fairly derived from the evidence, and [is] improper argument. Id. (citing Baer, 53 M.J. at 237). 8

31 During closing arguments, trial counsel compared what Appellant did sexually with his wife to what Appellant allegedly did sexually with GC. R In essence, trial argued that Appellant had the propensity to act a certain way when engaging in sexual relations. Although trial counsel made the propensity argument, the evidence of propensity was not admitted pursuant to any recognized exception to the general propensity prohibition found in MRE 404(a). Therefore, the trial counsel made an improper argument. Despite this improper argument, the military judge failed to issue a curative instruction. The trial judge is more than a mere referee, and as such he is required to assure that the accused receives a fair trial. United States v. Shamberger, 1 M.J. 377, 379 (C.M.A. 1976). Pursuant to this role, a military judge has a duty to stop improper trial counsel arguments and take appropriate curative measures including providing cautionary instructions to the panel of members. See United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A. 1977)( At the very least, the judge should have interrupted the trial counsel before he ran the full course of his impermissible argument. Corrective instructions at an early point might have dispelled the taint of the initial remarks ); United States v. Rhodes, 64 M.J. 630, 633 (A.F. Ct. Crim. App. 2007)(quoting United States v. Rutherford, 29 M.J. 1030, 1031 (A.C.M.R.1990). This affirmative duty arises when there is a fair risk that an improper argument will have an appreciable effect upon members. United States v. Williams, 23 M.J. 525, 527 (A.C.M.R. 1986)(citing United States v. Roser, 21 M.J. 883, 885 (A.C.M.R.1986)). But cf United States v. Shows, 5 M.J. 892, 893 (A.F.C.M.R. 1978). The context in which the trial counsel s improper propensity argument arose created a fair risk of having an appreciable effect upon the members. The prosecution s case was really just GC s story being admitted through various witnesses. The story personally came through 9

32 GC (R. 335), then through her teacher (R. 316), then through her social worker (R. 397), then through her mother (R. 414), and finally through her forensic psychologist (R. 472). But, the teacher, social worker, mother, and forensic psychologist did not add anything particularly new to the substance of the government s case. Those witnesses were merely meant to bolster GC s version of events. The government s case, therefore, was far from overwhelming. It really boiled down to GC s word on one side and Appellant s presumption of innocence coupled with issues of unintentional witnesses tampering, GC s susceptibility to suggestibility, and motive to misrepresent on the other side. See generally R In such cases, any unfair or improper argument risks having an appreciable effect on the members. Common sense dictates that in close cases members are precariously balancing between two versions of events, all they need is one external factor to finally push them in one direction or another. The trial counsel used the improper propensity argument to make that push and the military judge failed to correct it. WHEREFORE this Honorable Court should set aside Appellant s conviction. and (3) the error resulted in material prejudice to substantial rights. Id. (internal citations 10 III. APPELLANT WAS ERRONEOUSLY DEPRIVED OF HIS RIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGE CLOSED THE COURTROOM WITHOUT USING THE PROPER PROCEDURES. Standard of Review In the absence of defense objection, appellate courts review alleged errors for plain error. United States v. Lewis, 69 M.J. 379, 383 (C.A.A.F. 2011). Under the plain error standard an appellant must show, (1) an error was committed; (2) the error was plain, or clear, or obvious;

33 omitted) An error is not plain and obvious' if, in the context of the entire trial, the accused fails to show the military judge should be faulted for taking no action even without an objection. United States v. Burton, 67 M.J. 150, 153 (C.A.A.F. 2009)(internal citation omitted). Law and Analysis The Sixth Amendment to the United States Constitution guarantees that, [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. U.S. CONST. amend. VI. The benefits of a public trial, although frequently intangible, difficult to prove, or a matter of chance, are a central tenant of our judicial structure. Walton v. Briley, 361 F.3d 431, 432 (7 Cir. 2004) (quoting Waller v. Georgia, 467 U.S. 39, 49 n. 9 (1984). Public trials help to prevent perjury, unjust condemnation, and keep the accused s triers keenly alive to a sense of their responsibility and to the importance of their functions. Id. (quoting Waller at 46.) Such trials may encourage unknown witnesses to come forward and further serve to preserve the integrity of the judicial system in the eyes of the public. Id. An erroneous deprivation of the right to a public trial is structural error, which requires this Court to overturn Appellant's conviction without a harmlessness analysis. United States v. Ortiz, 66 M.J. 334,342 (C.A.A.F. 2008) (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). To avoid an erroneous deprivation of an accused right to public trial one of two procedures must be followed. The first is a four-part test that was first articulated in Waller v. Georgia. 467 U.S. 39, 48 (1984)( A party seeking to bar the court's doors to the public must satisfy a four-part test: (1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be 11

34 narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure. ) The Waller test was later codified as RCM 806(b)(2), which states, Courts-martial shall be open to the public unless (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and found inadequate; and (4) the military judge makes case-specific findings on the record justifying closure. The second way to avoid an erroneous deprivation of an accused s right to a speedy trial is by obtaining a proper waiver of the right from the accused. However, as recognized and articulated by the Seventh Circuit, the waiver of one s right to a public trial requires a heightened standard of waiver. Walton v. Briley, 361 F.3d 431, 433 (7 Cir. 2004). As [t]he Supreme Court has noted, [t]he Constitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the Framers thought indispensable to a fair trial. Walton v. Briley, 361 F.3d 431, 433 (7 Cir. 2004)(citing Schneckloth v. Bustamonte, 412 U.S. 218, (1973)). Consequently, every reasonable presumption should be indulged against waiver of a fundamental trial right. Walton v. Briley, 361 F.3d 431, 433 (7 Cir. 2004)(citing Hodges v. Easton, 106 U.S. 408, 412 (1882)). Therefore, [l]ike other fundamental trial rights, a right to a public trial may be relinquished only upon a showing that the defendant knowingly and voluntarily waived such a right. Walton v. Briley, 361 F.3d 431, 434 (7 Cir. 2004). In the instant case, Appellant was undoubtedly deprived of his right to a public trial; the military judge completely closed Appellant s court martial to all members of the public for a period of time. R The only real question is whether this deprivation was erroneous. 12

35 Because there was neither an application of the four-part test nor an elicitation of a proper waiver, the deprivation was erroneous. Regarding the four-part test, it is not entirely clear from the record whether trial counsel sought the closure or if the military judge sought the closure sua sponte. See R. 22. What is clear though is that no party articulated any interest to compete with much less override - Appellant s interest in a public trial. Obviously, this also means that there could be no showing of a substantial probability of that interest being prejudiced. Without knowing what interest was allegedly at stake, it is impossible to determine if the closure was narrowly tailored. Further, no alternatives were considered and found inadequate, nor were any case specific findings made to justify the closure. Neither was a proper waiver elicited from Appellant. While Appellant s trial defense counsel did not voice an objection (R. 22), the military judge s reliance on that is far from the constitutional requirement that every effort be made to see to it that a[n] [accused] in a criminal case has not unknowingly relinquished his right to a public trial. Walton at 433. Nothing on the record shows that Appellant knowingly and voluntarily waived his right to a public trial. This erroneous deprivation resulted in a structural error necessitating the reversal of the case. As was recently reaffirmed by the Supreme Court in Bullcoming v. New Mexico, the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. If a particular guarantee of the Sixth Amendment is violated, no substitute procedure can cure the violation, and [n]o additional showing of prejudice is required to make the violation complete. Bullcoming v. New Mexico, No , slip op at 13, (S. Ct. Jun 23, 2011)(citing United States v. Gonzalez-Lopez, 548 U. S. 140 (2006)). IV. 13

36 APPELLANT WAS DEPRIVED OF HIS RIGHT TO SPEEDY POST-TRIAL REVIEW WHEN 174 DAYS ELAPSED BETWEEN THE DATE OF SENTENCING AND THE DATE THE CONVENING AUTHORITY TOOK ACTION 6. Standard of Review Claims of denial of speedy post-trial processing are reviewed under a de novo standard. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006). Law and Analysis Convicted service members have a constitutional due process right to a timely review and appeal of their courts martial. Diaz v. The Judge Advocate General of the Navy. 59 M.J. 34, (C.A.A.F. 2003). The first inquiry in assessing a claim of unreasonable post-trial delay is to ask whether the delay in question is facially unreasonable. If so, reviewing courts must balance the following four factors set forth in the case Barker v. Wingo: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant's assertion of the right to timely review; and (4) prejudice. Moreno, 63 M.J. at ; United States v. Jones, 61 M,J. 80, 83 (C.A.A.F. 2005). No single factor is required to find that post-trial delay constitutes a due process violation. Rather, reviewing courts must examine the totality of the circumstances in determining whether relief is warranted. Moreno. 63 MJ. at 136: United States v. Allison. 63 MJ. 365, 371 (C.A.A.F. 2006). In Appellant's case, 174 days elapsed between the date of sentencing and the date that the convening authority ultimately took action. Moreno is instructive in terms of delineating a This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 14

37 day guideline for facial unreasonableness of the timing of post-trial review. Thus, the delay in Appellant s case was facially unreasonable and triggers review under the four Barker factors. As to the second prong, it took 61 days (26 February April 2010) to transcribe the record. See Court Reporter s Chronology. During this time the court reporter fully transcribed another court martial that started after Appellant s and was longer than Appellant s. Id. Another 26 days went by before the Staff Judge Advocate s Recommendation was prepared. See Staff Judge Advocate s Recommendation. Initial action was not taken until 2 July 2010, 126 days after Appellant s court martial ended. Apparently recognizing a Moreno issue, the 18 AF legal office attempted to account for the delay in an MFR that attempted to blame Appellant s trial defense counsel s timing of the clemency submission. See MFR, Subject: Action not taken within 120 days from Completion of Trial. There are two fundamental flaws with the 18 AF s justification. First, as the MFR states, 18 AF/JA received clemency on the date it was due. Id. Thus, trial defense counsel caused no delay. Second, the 2 July 2010 action was withdrawn and replaced 48 days later on 19 August 2010, thus making the total time between the end of trial and action 174 days. The third Barker prong is whether Appellant asserted his right to timely post-trial review. Appellant through his counsel did assert his right to speedy post-trial processing. See, 5 July from Major Michelle Quitugua entitled US v. Carter: request for status update. The final Barker prong requires an appellant to show the harm or prejudice he has suffered from the unreasonable delay. While this is certainly the most difficult prong for an appellant to prevail upon, as stated above, no one factor is required to find a speedy post-trial violation. Additionally, in United States v. Tardif the C.A.A.F. stated that the CCAs had power 15

38 under Article 66(c) to grant sentence relief even in the absence of an unreasonable post-trial delay. 57 M.J. 219, 224 (C.A.A.F. 2002). sentence. WHEREFORE this honorable court should set aside and reassess the Appellant s V. APPELLANT S CONVICTION WAS LEGALLY AND FACTUALLY INSUFFICIENT. 7 Appellant argues that, for the following reasons, his conviction is legally and factually insufficient: 1) Neither OSI s nor Dr. Slicner s reports which were the basis for preferral of charges were entered into evidence; 2) No representative of the Air Force s Family Advocacy, Illinois s Department of Children and Family Services, or the Air Force Office of Special Investigations testified at the court martial; conviction. 3) GC s counselor, Dr. McGrady, did not testify; 4) No sexual assault nurse examiner testified; and 5) The commander was not called to testify. WHEREFORE, Appellant respectfully requests this Honorable Court set aside his VI. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL. 8 7 This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 8 This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 16

39 Appellant argues that, for the following reasons, he received ineffective assistance from his trial defense counsel: 1) Trial defense counsel failed to request more time to prepare for trial once Appellant s civilian defense counsel were removed from his case; 2) Trial defense counsel failed to enter Dr. Slicner s report into evidence; 3) Trial defense counsel failed to call Dr. McGrady to testify or to enter her notes into evidence; 4) Trial defense counsel failed to call nurse Tiller to the stand to testify; and 5) Trial defense counsel failed to call Major Rucker to the stand. WHEREFORE, Appellant respectfully requests this Honorable Court set aside his conviction. Respectfully Submitted, LUKE D. WILSON, Capt, USAF Appellate Defense Counsel Air Force Legal Operations Agency United States Air Force (240)

40 APPENDIX B

41 6 October 2011 IN THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES, ) APPELLANT S MOTION FOR Appellee, ) EXPEDITED REVIEW AND DEMAND ) FOR SPEEDY POST-TRIAL v. ) PROCESSING ) Master Sergeant (E-7) ) Before Panel No. 2 PATRICK CARTER, ) Case No. ACM USAF, ) Appellant. ) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS: COMES NOW Appellant, Master Sergeant Patrick Carter, by and through his undersigned counsel, and pursuant to Rule 23 of the Joint Courts of Criminal Appeals Rules of Practice and Procedure, moves for expedited review of his case and demands speedy post-trial review. At his court-martial, Appellant faced, and pled not guilty to, four specifications of Article 120, UCMJ, violations, two specifications of Article 125, UCMJ, violations, and two specifications of Article 134, UCMJ, violations. Of the eight total specifications, he was acquitted of all except one Article 120 specification and both of the Article 134 violations. Of the three specifications he was found guilty of, the convening authority disproved the Article 120 specification, thus leaving only the two Article 134 specifications to justify the convening authorities approval of Appellant s sentence of, among other punishments, three years confinement. Neither of the Article 134 specifications contain a terminal element as required by United States v. Fosler, 70 M.J. 255 (C.A.A.F. 2011). Because of this, it is likely that Appellant will be entitled to substantial relief once his case is finally reviewed. Therefore, everyday Appellant spends in confinement is likely to prejudice him in a way that the ability to give him any

42 meaningful relief. Accordingly, to preserve the possibility of providing Appellant with meaningful relief, Appellant demands his right to speedy post-trial review and respectfully requests that this Honorable Court expedite its consideration of his case. Respectfully Submitted, LUKE D. WILSON, Capt, USAF Appellate Defense Counsel Air Force Legal Operations Agency United States Air Force (240)

43 APPENDIX C

44 6 October 2011 IN THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES, ) APPELLANT S MOTION FOR Appellee, ) EXPEDITED REVIEW AND DEMAND ) FOR SPEEDY POST-TRIAL v. ) PROCESSING ) Master Sergeant (E-7) ) Before Panel No. 2 PATRICK CARTER, ) Case No. ACM USAF, ) Appellant. ) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS: COMES NOW Appellant, Master Sergeant Patrick Carter, by and through his undersigned counsel, and pursuant to Rule 23 of the Joint Courts of Criminal Appeals Rules of Practice and Procedure, moves for expedited review of his case and demands speedy post-trial review. At his court-martial, Appellant faced, and pled not guilty to, four specifications of Article 120, UCMJ, violations, two specifications of Article 125, UCMJ, violations, and two specifications of Article 134, UCMJ, violations. Of the eight total specifications, he was acquitted of all except one Article 120 specification and both of the Article 134 violations. Of the three specifications he was found guilty of, the convening authority disproved the Article 120 specification, thus leaving only the two Article 134 specifications to justify the convening authorities approval of Appellant s sentence of, among other punishments, three years confinement. Neither of the Article 134 specifications contain a terminal element as required by United States v. Fosler, 70 M.J. 255 (C.A.A.F. 2011). Because of this, it is likely that Appellant will be entitled to substantial relief once his case is finally reviewed. Therefore, everyday Appellant spends in confinement is likely to prejudice him in a way that the ability to give him any

45 meaningful relief. Accordingly, to preserve the possibility of providing Appellant with meaningful relief, Appellant demands his right to speedy post-trial review and respectfully requests that this Honorable Court expedite its consideration of his case. Respectfully Submitted, LUKE D. WILSON, Capt, USAF Appellate Defense Counsel Air Force Legal Operations Agency United States Air Force (240)

46 7 October 2011 IN THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES, ) OPPOSITION TO MOTION FOR Appellee, ) EXPEDITED REVIEW AND ) DEMAND FOR SPEEDY POSTv. ) TRIAL PROCESSING ) Master Sergeant (E-7) ) ACM PATRICK CARTER, USAF, ) Appellant. ) Panel No. 2 ) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS Pursuant to Rule 23 of this Court s Rules of Practice and Procedure, the United States enters its general opposition to Appellant s Motion for Expedited Review and Speedy Post-Trial Processing, served on 6 October The Government notes Appellant was granted six enlargements of time in this case, with the first request for delay filed on 16 February It seems disingenuous for Appellant to request expedited review to obtain meaningful sentence relief after 357 days of defense delay. (See Motion for Expedited Review and Demand for Speedy Post-Trial Processing, dated 6 October 2011 at 2). While the Government favors timely review of all cases, Appellant has not demonstrated a compelling need for expedited review and his request is not required in the interests of justice. WHEREFORE, the United States requests this Court deny Appellant s Motion for Expedited Review.

47 LAUREN N. DIDOMENICO, Maj, USAF Appellate Government Counsel Air Force Legal Operations Agency United States Air Force (240) GERALD R. BRUCE Senior Appellate Government Counsel Air Force Legal Operations Agency United States Air Force (240) CERTIFICATE OF FILING AND SERVICE I certify that a copy of the foregoing was delivered to the Court and to the Air Force Appellate Defense Division, on 7 October 2011, via electronic filing. LAUREN N. DIDOMENICO, Maj, USAF Appellate Government Counsel Air Force Legal Operations Agency United States Air Force (240)

48 APPENDIX D

49 IN THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES, ) SECOND MOTION FOR Appellee, ) EXPEDITED REVIEW AND DEMAND ) FOR SPEEDY POST-TRIAL v. ) PROCESSING ) Master Sergeant (E-7) ) Before Panel No. 2 PATRICK CARTER, ) Case No. ACM USAF, ) Appellant. ) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS: COMES NOW Appellant, Master Sergeant Patrick Carter, by and through his undersigned counsel, and pursuant to Rule 23 of the Joint Courts of Criminal Appeals Rules of Practice and Procedure, moves for expedited review of his case and demands speedy post-trial review. At his court-martial, Appellant faced, and pled not guilty to, four specifications of Article 120, UCMJ, violations, two specifications of Article 125, UCMJ, violations, and two specifications of Article 134, UCMJ, violations. Of the eight total specifications, he was acquitted of all except one Article 120 specification and both of the Article 134 violations. Of the three specifications he was found guilty of, the convening authority disproved the Article 120 specification, thus leaving only the two Article 134 specifications to justify the convening authorities approval of Appellant s sentence of, among other punishments, three years confinement. Appellant is currently confined in Navy Consolidated Brig Miramar (Miramar). The only specifications holding him there are the two Article 134 specifications. However, neither of the Article 134 specifications contain a terminal element as required by United States v. Fosler, 70 M.J. 255 (C.A.A.F. 2011). Further, as discussed in Appellant s 20 June 2012 motion to cite

50 supplemental authorities 1, United States v. Humphries ( M.J., No /AF (C.A.A.F. June 15, 2012)) controls Appellant s case and demands that the faulty Article 134 specifications be set aside. When those specifications are set aside, there will no legal basis by which he can continue to be incarcerated in Miramar. Thus, every day that passes without review of his case is a day that he is imprisoned without legal justification. WHEREFORE, Appellant demands his right to speedy post-trial review and respectfully requests that this Honorable Court expedite its consideration of his case. Respectfully Submitted, LUKE D. WILSON, Capt, USAF Appellate Defense Counsel Air Force Legal Operations Agency United States Air Force (240) Filed separately. 2

51 CERTIFICATE OF FILING AND SERVICE I certify that the original and copies of the foregoing was sent via to the Court and served on the Appellate Government Division on. LUKE D. WILSON, Capt, USAF Appellate Defense Counsel Air Force Legal Operations Agency United States Air Force (240)

52 APPENDIX E

53 21 Jun 12 IN THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES, ) SECOND MOTION FOR Appellee, ) EXPEDITED REVIEW AND DEMAND ) FOR SPEEDY POST-TRIAL v. ) PROCESSING ) Master Sergeant (E-7) ) Before Panel No. 2 PATRICK CARTER, ) Case No. ACM USAF, ) Appellant. ) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS: COMES NOW Appellant, Master Sergeant Patrick Carter, by and through his undersigned counsel, and pursuant to Rule 23 of the Joint Courts of Criminal Appeals Rules of Practice and Procedure, moves for expedited review of his case and demands speedy post-trial review. At his court-martial, Appellant faced, and pled not guilty to, four specifications of Article 120, UCMJ, violations, two specifications of Article 125, UCMJ, violations, and two specifications of Article 134, UCMJ, violations. Of the eight total specifications, he was acquitted of all except one Article 120 specification and both of the Article 134 violations. Of the three specifications he was found guilty of, the convening authority disproved the Article 120 specification, thus leaving only the two Article 134 specifications to justify the convening authorities approval of Appellant s sentence of, among other punishments, three years confinement. Appellant is currently confined in Navy Consolidated Brig Miramar (Miramar). The only specifications holding him there are the two Article 134 specifications. However, neither of the Article 134 specifications contain a terminal element as required by United States v. Fosler, 70