United States v. Carter ( 2018 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39289
________________________
UNITED STATES
Appellee
v.
Michael B. CARTER
Master Sergeant (E-7), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 26 October 2018
________________________
Military Judge: Christopher A. Santoro.
Approved sentence: Dishonorable discharge, confinement for 10 years,
and reduction to E-1. Sentence adjudged 12 April 2017 by GCM con-
vened at Royal Air Force Mildenhall, United Kingdom.
For Appellant: Major Allen S. Abrams, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Pe-
ter F. Kellett, USAF; Mary Ellen Payne, Esquire.
Before MAYBERRY, HARDING, and MINK, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Chief Judge
MAYBERRY and Senior Judge HARDING 1 joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
1 Senior Judge Harding participated in this decision prior to his retirement.
United States v. Carter, No. ACM 39289
MINK, Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas, of one specification of attempted sexual abuse of a
child by communicating indecent language and one specification of possessing
and viewing child pornography, in violation of Articles 80 and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 934. The military judge
sentenced Appellant to a dishonorable discharge, confinement for ten years,
and reduction to the grade of E-1. The convening authority approved the sen-
tence as adjudged, after having deferred the reduction in grade until action
and waived the mandatory forfeitures for a period of six months or expiration
of term of service, whichever is sooner, for the benefit of Appellant’s spouse and
dependent children.
On appeal, Appellant raises three issues: (1) whether the military judge
committed prejudicial error by admitting victim impact evidence under Rule
for Courts-Martial (R.C.M.) 1001A; (2) whether the Government prevented Ap-
pellant from assisting in his own defense in violation of the Sixth Amendment 2
when the Government took and refused to return his copy of the record of trial;
and (3) whether his sentence is inappropriately severe. 3 In light of the holding
of the United States Court of Appeals for the Armed Forces (CAAF) in United
States v. Barker, 77 M.J. 377 (C.A.A.F. 2018), we find the military judge erred
in admitting the victim impact evidence under R.C.M. 1001A. Since the error
substantially influenced the sentence to the prejudice of Appellant, we reassess
the sentence. Finding no other prejudicial error, we affirm the findings and
sentence as reassessed.
I. BACKGROUND
In April 2016, Appellant, a 39-year-old Master Sergeant assigned to Royal
Air Force (RAF) Mildenhall, United Kingdom (UK), was on temporary duty to
Hurlburt Field, Florida. While there, he discovered a personal advertisement
on the Internet entitled “military dependant [sic] lookin [sic] for company
(lakenheath/mildenhal [sic]) – w4m” 4 on the “Casual Encounters” section of
Craigslist. 5 Appellant responded to the advertisement and began an email con-
versation with an individual who identified herself as “Stacey,” a 14-year-old
dependent child living on RAF Mildenhall. Unbeknownst to Appellant,
2 U.S. CONST. amend. VI.
3Appellant personally raises the third issue pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).
4 The acronym “w4m” is generally understood to refer to “woman for man.”
5 Craigslist is a website that hosts classified advertisements and discussion forums.
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United States v. Carter, No. ACM 39289
“Stacey” was in fact an agent of the Air Force Office of Special Investigations
(AFOSI) pretending to be “Stacey” as part of an undercover law enforcement
operation designed to catch sexual predators targeting children. At Appellant’s
suggestion, Appellant and “Stacey” switched from communicating by email to
Kik, a cellphone text messaging application. Appellant offered to bring some-
thing back to RAF Mildenhall for her, and “Stacey” told him that she wanted
a new bathing suit. Appellant purchased two bathing suits which he brought
back to RAF Mildenhall with him and continued text messaging with “Stacey.”
Their electronic text communications continued for approximately one month,
during which Appellant used a variety of terms and language to describe the
sexual acts he would like to perform on “Stacey” and described for her different
objects that she could use to masturbate. After AFOSI’s efforts to set up a meet-
ing between Appellant and “Stacey” were unsuccessful, Appellant was brought
into the AFOSI office and questioned about his conversations with “Stacey.” At
all times prior to being brought into the AFOSI office, Appellant believed
“Stacey” was a 14-year-old child.
AFOSI agents also searched Appellant’s cellular phone and his residence,
where the agents discovered the two bathing suits Appellant had purchased
for “Stacey” as well as what appeared to be child pornography. AFOSI seized
numerous items of electronic media, including computer hard drives, cellular
phones, floppy disks, DVDs, 6 tablet computers, and memory cards. Investiga-
tors examined a total of 67 items of electronic media belonging to Appellant,
25 of which contained files with images or videos depicting sexual acts with
children, some involving infants. AFOSI Special Agent BCS testified during
Appellant’s court-martial that the electronic media seized from Appellant con-
tained thousands of images appearing to be child pornography. The National
Center for Missing and Exploited Children (NCMEC) identified more than
16,000 images or videos that contained known victims of child pornography on
the electronic media seized from Appellant.
On notice that the Government intended to offer victim impact statements
from some of the victims of the child pornography during the Government’s
sentencing case, Appellant’s trial defense counsel filed a written motion in
limine prior to trial. The motion sought “to preclude trial counsel from present-
ing impermissible sentencing evidence in the form of unsworn victim impact
letters and testimony from law enforcement case agents.” Among the multiple
grounds cited for exclusion of the victim statements, Appellant’s trial defense
counsel highlighted the lack of participation by any of the victims:
6 The acronym “DVDs” is generally understood to refer to “digital video discs.”
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United States v. Carter, No. ACM 39289
[These] statements lack foundation for personal knowledge
about this case. [R.C.M.] 1001A(e)(1) envisions, after the an-
nouncement of findings, a “victim who would like to present an
unsworn statement” providing to the court a copy of the state-
ment. That implies active involvement in this specific case by an
interested victim. It also implies the court is able to assess the
identity of the victim and how that person relates to the proceed-
ings. In this case, there is no indication that any purported vic-
tim wants to present an unsworn statement—or even that any
know about the case and their rights with respect to it. Instead,
trial counsel would be offering old, recirculated letters from past
cases.
During the presentencing portion of Appellant’s court-martial, pursuant to
R.C.M. 1001A, the Government offered unsworn written statements of victims
associated with three distinct NCMEC series of child pornography—the
“Jan_Feb” series, the “Vicky” series, and the “Cindy” series. Appellant pleaded
guilty to and was found guilty of possessing and viewing images from these
three series. Pursuant to R.C.M. 1001A, the Government also offered the un-
sworn written statement of a police detective from the UK that he had pre-
pared at the direction of the family of another known victim of child pornogra-
phy, identified as “Vicki.” Appellant pleaded guilty to and was found guilty of
possessing and viewing images from the “Vicki” series.
Apparently in lieu of notification to these victims of their rights to be rea-
sonably heard at this sentencing hearing pursuant to Article 6b, UCMJ, 10
U.S.C. § 806b, and R.C.M. 1001A, the Government relied on the law enforce-
ment agents for each of the three NCMEC child pornography series and the
UK police detective for the “Vicki” series to attempt to meet the requirements
of R.C.M. 1001A. The case agents and the detective were called as Government
sentencing witnesses. Through the testimony of the agents, the Government
established that each victim generally desired to have her respective unsworn
written statement “heard” by sentencing authorities in cases where a defend-
ant had been convicted of a child pornography offense or offenses involving the
NCMEC series that pertained to her. Similarly, the Government established
through the testimony of the UK police detective that “Vicki” and her family
generally desired to have him provide victim impact information on their be-
half in legal proceedings associated with the child pornography in which she
was the victim. The UK detective also testified that the victim’s family had
designated him as “power of attorney” for “proceedings like this” at some point
in time.
Over trial defense counsel’s objections, the law enforcement case agent for
the “Jan_Feb” series testified that the abuse depicted in the “Jan_Feb” series
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United States v. Carter, No. ACM 39289
occurred when the victim was six years old and that he first met the victim
when she was approximately nine or ten years old. In 2008, the victim’s mother
prepared a statement on behalf of the victim intended for use in judicial pro-
ceedings. The statement described the impact that the creation and existence
of the “Jan_Feb” series had on the victim up to that point in time. The agent
testified that he had contacted the victim approximately 10 months prior to
Appellant’s court-martial seeking a statement from her as an adult. He testi-
fied the victim would turn 21 years old in April 2017 and was a college student.
The case agent stated the victim told him she intended to create a new impact
statement in the future, but until then she wanted her mother’s 2008 state-
ment to be used. However, the case agent testified that he did not know
whether or not the victim was aware of Appellant’s court-martial.
The military judge also heard the testimony of the law enforcement case
agents for the “Vicky” series 7 and the “Cindy” series, 8 and the testimony of the
UK detective who investigated the “Vicki” series. 9 After hearing the testimony
of each and reviewing the unsworn statements that each identified pertaining
to the respective victim, the military judge found that each of the victims who
appeared in an image of child pornography was a “victim” for purposes of
R.C.M. 1001A, as was the parent or stepparent of those individuals. The mili-
tary judge also determined that each of the law enforcement case agents could
testify about any victim impact that they personally observed, and the military
judge relied on their testimony to establish the foundation for admission of the
victims’ unsworn statements. The military judge further found that the UK
7 The case agent for the “Vicky” series testified that the victim was 10 and 11 years old
when she appeared in the images. The agent testified that he was first contacted re-
garding this series in 2004 and that he met the victim at some point during the inves-
tigation. By the time of Appellant’s trial, the victim was an adult, though the record
does not specifically state her age. The agent testified that he was aware of the victim’s
intent to have an unsworn statement considered in future cases, but there was no evi-
dence in the record that the victim was aware of Appellant’s case.
8 The case agent for the “Cindy” series testified that the victim was approximately 30
years old at the time of Appellant’s trial. The agent testified that he was aware of the
victim’s intent to have an unsworn statement considered in future cases but did con-
cede that he had not communicated with the victim in the four years preceding Appel-
lant’s trial. Thus, there was no evidence the victim was aware of Appellant’s case.
9 The detective who investigated the “Vicki” series testified that he last spoke to the
victim in 2001 and to her mother in 2004. The detective testified that the victim was
an adult at the time of Appellant’s trial. The detective further testified he did not know
whether the victim was even aware that pictures of her were on the Internet or about
any victim impact on her as a result of her pictures being on the Internet. Conse-
quently, there was no evidence that the victim knew of Appellant’s offenses or his trial.
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United States v. Carter, No. ACM 39289
detective could act as a representative for the victim in the “Vicki” series be-
cause the UK detective’s testimony that he had been given “power of attorney”
by the victim’s family was unrebutted.
In sum, over the objection of the trial defense counsel, the military judge
relied on the testimony of the law enforcement case agents to authenticate the
statements as having been written by the victims and treated the UK detective
as the designee for the victim in the “Vicki” series, even though each victim
was an adult by the time of Appellant’s trial and there was no evidence to sug-
gest that any of the victims was incapacitated or incompetent. The military
judge then admitted the written unsworn statements of the victims, including
the parent and stepparent of one of the victims, and of the UK police detective
as prosecution exhibits. After admitting the victim impact statements, the mil-
itary judge limited the portions he would consider to those portions of the state-
ments relating directly to the impact of Appellant’s offenses on the victims.
II. DISCUSSION
A. Rule for Courts-Martial 1001A
1. Law
“Interpreting R.C.M. 1001A is a question of law, which we review de novo.”
Barker, 77 M.J. at 382 (citation omitted). However, we review a military judge’s
decision to admit a victim impact statement offered pursuant to R.C.M. 1001A
for an abuse of discretion. Id. at 383 (citing United States v. Humpherys, 57
M.J. 83, 90 (C.A.A.F. 2002)). 10 A military judge abuses his discretion when his
decision to permit such a statement is based on an erroneous view of the law.
Id. (citing United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013)).
R.C.M. 1001A(e) provides that during presentencing proceedings, the vic-
tim of an offense of which the accused has been found guilty:
[M]ay make an unsworn statement and may not be cross-exam-
ined by the trial counsel or defense counsel upon it or examined
upon it by the court-martial. The prosecution or defense may,
10 Appellate courts review a military judge’s decision to admit evidence for an abuse of
discretion. See, e.g., Humpherys, 57 M.J. at 90. In United States v. Hamilton, this court
held that victim impact statements offered pursuant to R.C.M. 1001A are not “evi-
dence” but nevertheless applied the abuse of discretion standard in reviewing the mil-
itary judge’s decision to allow such statements to come before the court. 77 M.J. 579,
585 (A.F. Ct. Crim. App. 2017) (en banc), rev. granted, 77 M.J. 368 (C.A.A.F. 2018).
When the CAAF applied the abuse of discretion standard in Barker, it assumed with-
out deciding that such statements are evidence but noted it would decide that question
in its review of Hamilton. Barker, 77 M.J. at 383 n. 9.
6
United States v. Carter, No. ACM 39289
however, rebut any statements of facts therein. The unsworn
statement may be oral, written, or both. When a victim is under
18 years of age, incompetent, incapacitated, or deceased, the un-
sworn statement may be made by the victim’s designee ap-
pointed under R.C.M. 801(a)(6). Additionally, a victim under 18
years of age may elect to make an unsworn statement.
See also Article 6b, UCMJ, 10 U.S.C. § 806b(a)(4)(B) (stating the victim
of an offense under the UCMJ has a right to be reasonably heard at a
sentencing hearing). “[T]he rights vindicated by R.C.M. 1001A are per-
sonal to the victim in each individual case.” Barker, 77 M.J. at 382.
The CAAF further noted:
All of the procedures in R.C.M. 1001A contemplate the actual
participation of the victim, and the statement being offered by
the victim or through her counsel. Moreover, they assume the
victim chooses to offer the statement for a particular accused, as
they permit only the admission of information on victim impact
“directly relating to or arising from the offense of which the ac-
cused has been found guilty.” R.C.M. 1001A(b)(2).
Barker, 77 M.J. at 383. “Therefore, the introduction of statements under this
rule is prohibited without, at a minimum, either the presence or request of the
victim, the special victim’s counsel, or the victim’s representative.” Id. at 382
2. Analysis
In this case, the Government attempted to meet the presence or request of
the victim requirement by calling the case agents and the UK detective who
had met with the victims in the past and had general knowledge of their intent
to have their written statements be considered in future cases or, regarding
the UK detective, to make a statement on the victim’s behalf. The military
judge then relied on the testimony of the case agents to authenticate the victim
impact statements and decided to admit the UK detective’s statement as a rep-
resentative of the victim based on the “power of attorney” granted by the vic-
tim’s family. However, the military judge did not follow the procedure to deter-
mine the appointment of a designee described in R.C.M. 1001A(e) and R.C.M.
801(a)(6). There is no evidence in the record of trial that the victims, even
though all adults at the time of Appellant’s trial, were contacted by the trial
counsel or the case agents or the UK detective with a view toward this partic-
ular trial.
As the CAAF stated in Barker, it is likewise in this case that:
[T]his approach ignores the requirement of Article 6b, UCMJ,
that victims be contacted and have the choice to participate and
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United States v. Carter, No. ACM 39289
be consulted in cases where they are victims. Article
6b(a)(2)−(5), UCMJ. It further ignores the fact that the R.C.M.
1001A process belongs to the victim, not to the trial counsel.
R.C.M. 1001A(a).
77 M.J. at 383.
Furthermore, all of the victim impact statements, although admitted under
R.C.M. 1001A, were marked as prosecution exhibits. As this court observed in
United States v. Hamilton:
Trial practitioners must recognize the distinction between evi-
dence offered and admitted during presentencing by the prose-
cution and defense under R.C.M. 1001 and victim impact state-
ments offered under R.C.M. 1001A. The victim “shall be called
by the court-martial” as their right to be heard is “independent
of whether they testify during findings or are called to testify un-
der R.C.M. 1001.” R.C.M. 1001A(a) (emphasis added).
77 M.J. 579, 586 (A.F. Ct. Crim. App. 2017) (en banc), rev. granted, 77 M.J. 271(C.A.A.F. 2018).
Exhibits presented under R.C.M. 1001A should be marked as court exhib-
its. 11In this case, however, marking the victim impact statements as prosecu-
tion exhibits accurately captured how they were admitted—these exhibits were
offered by the Government during its sentencing case. Effectively, trial counsel
appropriated the victims’ rights under R.C.M. 1001A in order to admit the vic-
tims’ statements as evidence in aggravation. This use of R.C.M. 1001A by the
trial counsel is impermissible; “the R.C.M. 1001A process belongs to the victim,
not to the trial counsel.” Barker, 77 M.J. at 383 (citation omitted). Trial coun-
sel’s proper role under R.C.M. 1001A is to “ensure the victim is aware of the
opportunity to exercise” the right to be heard at a sentencing hearing, not to
ensure the right is exercised. R.C.M. 1001A(a).
The three victims from the NCMEC series and the victim from the “Vicki”
series involved in Appellant’s offenses did not participate in the proceedings,
and there is no indication that any of the victims were aware of Appellant’s
trial. Most importantly, the unsworn statements were not offered by the vic-
tims—all adults at the time of Appellant’s trial—and the law enforcement
agents were not designated to exercise the victims’ right to be reasonably heard
at Appellant’s sentencing. Only the UK detective, who had been granted
“power of attorney” from the family of the victim in the “Vicki” series, was
11As this court also stated in Hamilton, “We recommend these types of exhibits be
marked as court exhibits in accordance with the Uniform Rules of Military Practice
Before Air Force Courts-Martial, Rule 7.1(C) (1 Jan. 2017).” 77 M.J. at 586.
8
United States v. Carter, No. ACM 39289
treated by the military judge as having authority to speak on behalf of the
victim, but there was no evidence that the “power of attorney” in this case com-
ported with the requirements of R.C.M. 1001A(e) and R.C.M. 801(a)(6). Thus,
we conclude the military judge abused his discretion by admitting the unsworn
victim impact statements under R.C.M. 1001A.
When there is error regarding the admission of victim impact statements
under R.C.M. 1001A, “the test for prejudice ‘is whether the error substantially
influenced the adjudged sentence.’” Barker, 77 M.J. at 384 (citation omitted).
Usually, when determining whether an error substantially influenced a sen-
tence, this court considers the following factors: “(1) the strength of the Gov-
ernment’s case; (2) the strength of the defense case; (3) the materiality of the
evidence in question; and (4) the quality of the evidence in question.” United
States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017) (quoting United States v. Kerr,
51 M.J. 401, 405 (C.A.A.F. 1999)).
While we would ordinarily analyze the error in Appellant’s case by consid-
ering these four factors, we find it unnecessary to do so in view of the military
judge’s statements after announcement of the sentence. Anticipating that his
consideration of the victim impact evidence might be the subject of appellate
review, the military judge stated:
In the event there is any appellate review of this case and in the
event an appellate court conclude [sic] that I erred in my consid-
eration of either the written victim impact statements or the oral
testimony of the law enforcement agents about the victim im-
pact, in the event that none of that evidence was considered by
me as a sentencing authority the sentence adjudged would have
been no less than reduction to the grade of E-1, dishonorable dis-
charge, and confinement for 9 years.
Based on this statement, we find that the military judge’s erroneous con-
sideration of the victim impact evidence had a substantial impact on the ad-
judged sentence to the prejudice of Appellant. As a result, we consider whether
we should reassess the sentence or return the case for a sentence rehearing.
We are confident that we can accurately reassess an appropriate sentence in
this case.
3. Sentence Reassessment
This court has “broad discretion” in deciding to reassess a sentence to cure
error as well as in arriving at the reassessed sentence. United States v. Winck-
elmann, 73 M.J. 11, 12 (C.A.A.F. 2013). To reassess the sentence, we must be
able to reliably conclude that, in the absence of error, the sentence “would have
been at least of a certain magnitude,” and the reassessed sentence must be “no
greater than that which would have been imposed if the prejudicial error had
9
United States v. Carter, No. ACM 39289
not been committed.” United States v. Sales, 22 M.J. 305, 307–08 (C.M.A.
1986). “The standard for reassessment is not what would be imposed at a re-
hearing but what would have been imposed at the original trial absent the
error.” United States v. Taylor, 47 M.J. 322, 325 (C.A.A.F. 1997) (citations omit-
ted). As required by Article 66(c), UCMJ, a reassessed sentence “must be
purged of prejudicial error and also must be ‘appropriate’ for the offense[s] in-
volved.” Sales, 22 M.J. at 308.
In determining whether to reassess a sentence or order a rehearing, we
consider the totality of the circumstances, including the following illustrative,
but not dispositive, factors: (1) “[d]ramatic changes in the penalty landscape
and exposure,” (2) the forum, (3) whether the offenses remaining after we have
corrected the error capture the gravamen of the criminal conduct included
within the original offenses, (4) whether significant or aggravating circum-
stances remain admissible and relevant, and (5) whether the remaining of-
fenses are the type with which we, as appellate judges, “have the experience
and familiarity with to reliably determine what sentence would have been im-
posed at trial” by the sentencing authority. Winckelmann, 73 M.J. at 15–16
(citations omitted).
We are mindful that the penalty landscape and exposure has not changed;
the forum was military judge alone; the offenses of which Appellant was con-
victed remain the same; and significant aggravating evidence presented during
Appellant’s court-martial remains admissible and relevant. Additionally, this
court has extensive experience and familiarity with reviewing sentences for
Appellant’s offenses, sufficient for us to reliably determine what sentence
would have been imposed by the military judge, particularly in light of the
military judge’s own statements following his announcement of the sentence.
In consideration of these factors, we readily conclude that we can reassess the
sentence in this case.
Therefore, considering the facts of Appellant’s case, the totality of the cir-
cumstances, and particularly the statement of the military judge following his
announcement of the sentence, we find we are able to determine to our satis-
faction that, “absent any error, the sentence adjudged would have been of at
least a certain severity . . . .” Sales, 22 M.J. at 308 (C.M.A. 1986). Accordingly,
we reassess Appellant’s sentence to the same sentence that the military judge
stated he would have imposed in the absence of his erroneous consideration of
the victim impact statements: a dishonorable discharge, confinement for nine
years, and reduction to the grade of E-1.
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United States v. Carter, No. ACM 39289
B. Appellant’s Copy of the Record of Trial
Appellant next asserts that the Government prevented him from assisting
in his own defense in violation of the Sixth Amendment 12 by taking and refus-
ing to return his copy of the record of trial while he has been confined in the
Naval Consolidated Brig Miramar (Miramar Brig). In support of this alleged
error filed with this court on 8 May 2018, Appellant submitted a declaration
dated 3 May 2018, describing how his record of trial and other unspecified legal
documents had been taken from him by officials at the Miramar Brig upon his
arrival there on 1 August 2017. He asserted that despite three requests for the
documents’ return, he had still not received the record or the other legal docu-
ments.
In his brief, Appellant asks this court to: (1) direct the Government to show
cause concerning the whereabouts of Appellant’s copy of the record of trial and
other legal documents, why they were withheld, why they have not been re-
turned, and provide a timeline for when they will be returned; (2) return Ap-
pellant’s copy of the record of trial and the other legal documents; (3) provide
Appellant with a new copy of the record of trial if his cannot be located; (4)
allow Appellant 30 days after he receives his record of trial to file any supple-
mental assignments of error; and (5) ensure timely appellate review.
In its 7 June 2018 response to Appellant’s assignments of error, the Gov-
ernment acknowledged that Appellant’s record of trial had been confiscated
upon his arrival by the Miramar Brig officials to review it for any contraband
material and then officials at the Brig had been unable to locate it. However,
the Government asserted that Appellant’s record of trial had been discovered
in the office of the Air Force liaison officer at the Miramar Brig on 7 May 2018,
reviewed, and then provided to Appellant. The Government submitted decla-
rations from both the Miramar Brig’s Parole and Release Director and the Air
Force liaison officer stating that Appellant’s record of trial had been located on
7 May 2018 and subsequently provided to Appellant. 13
On 14 June 2018, Appellant submitted a reply brief responding to the Gov-
ernment’s arguments regarding the military judge’s consideration of victim im-
pact statements pursuant to R.C.M. 1001A. We find it significant that in his
reply brief, Appellant did not respond to the Government’s arguments regard-
ing the issue of his missing record of trial or contest the assertion that Appel-
lant had been provided a copy of his record of trial on or after 7 May 2018. We
12 U.S. CONST. amend. VI.
13Having applied the principles announced in United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997), and having considered the entire record of Appellant’s trial, we find
we can resolve this issue raised by Appellant without additional fact-finding.
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United States v. Carter, No. ACM 39289
also find it significant that in the more than 120 days that have passed since
Appellant submitted his reply brief on 14 June 2018, this court has received no
request from Appellant to submit any additional assignment of error for re-
view, including any additional assignment of error raised pursuant to
Grostefon, 12 M.J. 431.
Even assuming arguendo that the fact Appellant did not have access to his
record of trial was error, we discern no prejudice to Appellant. Appellant’s de-
fense counsel submitted seven requests for enlargement of time to this court,
none of which asserted Appellant’s lack of access to a copy of his record of trial
as a basis for the enlargement. Appellant’s counsel submitted three assign-
ments of error, including one personally raised by Appellant pursuant to
Grostefon, indicating at least some degree of communication between Appel-
lant and his defense counsel regarding his appeal. Based on the information
before this court, we find that Appellant received a copy of his record of trial
on or after 7 May 2018, that Appellant has had sufficient time to raise any
additional assignment of error to this court and has not done so, and that, as a
result, Appellant has not demonstrated any prejudice from not having a copy
of his record until on or after 7 May 2018. Accordingly, we grant no relief.
C. Sentence Appropriateness
1. Law
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence ap-
propriateness by considering the particular appellant, the nature and serious-
ness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct.
Crim. App. 2015) (en banc) (alteration in original) (citing United States v. An-
derson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)). Although we
have great discretion to determine whether a sentence is appropriate, we have
no authority to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F.
2010) (citation omitted).
2. Analysis
Appellant personally asserts that his sentence is inappropriately severe
and should be reduced. He contends that his crimes should be balanced along-
side his “exemplary duty performance,” which spanned a greater period of time
than his criminal offenses. He claims his “personal background shows that his
sentence was unduly severe for his circumstances and should be reduced.” We
are not persuaded.
12
United States v. Carter, No. ACM 39289
As for the particular circumstances of Appellant’s case, Appellant pleaded
guilty to communicating indecent language to a person he believed to be a 14-
year-old dependent daughter of another military member, including conversa-
tions of an overtly sexual nature discussing how she could masturbate and
other actions he would like to engage in with her. He bought her a bathing suit
that he described as one that “doesn’t cover much of the butt and it doesn’t
cover much of the chest,” told her he would like to see her wear it, and told her
how he would probably get an erection. Appellant also told her about his plans
to befriend her father, who he believed to be another master sergeant assigned
to RAF Mildenhall, so he could have the opportunity to be close to her, and
talked to her about sneaking into her bedroom at night.
Appellant also pleaded guilty to possessing and viewing thousands of im-
ages and videos of child pornography, many depicting girls ranging in age from
infant to pre-teenage years being sexually abused, including various incidents
of oral, vaginal, and anal penetration. Dating back approximately 15 years
prior to trial, during the majority of Appellant’s time on active duty in the Air
Force, Appellant collected, stored, and organized vast amounts of child pornog-
raphy, including more than 16,000 images or videos of individuals identified
as known victims of child pornography. While some of those images and videos
were duplicates or depicted children in various stages of undress, Appellant
possessed so many other images and videos of what appeared to be child por-
nography that AFOSI Special Agent BCS could not provide the court with an
approximate quantity due to the “sheer volume of images.”
Based on the offenses of which Appellant was convicted, he faced a maxi-
mum punishment of, inter alia, confinement for 25 years. Trial counsel re-
quested the military judge impose a sentence to confinement of 15 years. Trial
defense counsel requested that confinement not exceed three years. The mili-
tary judge, having reviewed all of the evidence in the case, including Appel-
lant’s lengthy duty history, imposed a sentence of confinement that was less
than one-half of the maximum authorized confinement that could have been
imposed in Appellant’s case. This court has further reassessed Appellant’s sen-
tence, resulting in a reduction in confinement by one year because of the mili-
tary judge’s erroneous consideration of victim impact statements under R.C.M.
1001A. Having given individualized consideration to Appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all other matters
contained in the record of trial, we find the sentence imposed by the military
judge, as reassessed by this court, is not inappropriately severe based on the
facts and circumstances of this particular case.
13
United States v. Carter, No. ACM 39289
III. CONCLUSION
The approved findings and the sentence as reassessed are correct in law
and fact, and no other error materially prejudicial to the substantial rights of
Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the findings and sentence, as reassessed, are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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