U.S. v. Carter, 79 M.J. 478

First Principles: Constitutional Matters: Search and Seizure

1. in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. to prevail on an ineffective assistance claim, an appellant bears the burden of proving that the performance of his defense counsel was deficient and that he was prejudiced by the error; judicial scrutiny of counsel’s performance must be highly deferential, and an appellate court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; to overcome the presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms
2. in this case, where trial defense counsel properly failed to introduce evidence that he reasonably believed was false, where counsel could not be faulted for mentioning the false evidence in his opening statement after he was misled by appellant, and where counsel used the evidence presented at trial to argue appellant’s theory of the case to sow doubt in the minds of the members even without the admission of the false evidence, his conduct fell within the wide range of reasonable professional assistance and was not ineffective
3. even if it were unreasonable for trial defense counsel not to introduce evidence he reasonably believed to be false, appellant cannot show prejudice where trial defense counsel made a valiant effort to present a defense and there is no reasonable probability that the outcome of the court-martial would have been different had he introduced that evidence; trial defense counsel instead properly preserved the possibility of doubt for the members without violating his ethical duties

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings
2. the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members; curative instructions are the preferred remedy, and absent evidence to the contrary, a jury is presumed to have complied with the judge’s instructions

Military Justice Personnel: Military Judge: Discretion

1. a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings
2. the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members; curative instructions are the preferred remedy, and absent evidence to the contrary, a jury is presumed to have complied with the judge’s instructions
3. in this case, where the government counsel improperly alleged that a witness testifying as to an adultery specification had been bribed, the military judge did not abuse his discretion where he declared a mistrial as to the adultery specification but not the other alleged offenses and where he issued curative instructions to the members informing them that the bribery allegations were unsubstantiated and instructing them to disregard all of that witness’s testimony and any inferences that anyone had attempted to bribe a witness in this case

Core Criminal Law Subjects: Evidence: Generally

1. in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible

Core Criminal Law Subjects: Evidence: Search and Seizure › Generally

1. in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible

Core Criminal Law Subjects: Evidence: Search and Seizure › Good faith exception

1. in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible

Core Criminal Law Subjects: Evidence: Search and Seizure › Warrants

1. in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. to prevail on an ineffective assistance claim, an appellant bears the burden of proving that the performance of his defense counsel was deficient and that he was prejudiced by the error; judicial scrutiny of counsel’s performance must be highly deferential, and an appellate court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; to overcome the presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. to prevail on an ineffective assistance claim, an appellant bears the burden of proving that the performance of his defense counsel was deficient and that he was prejudiced by the error; judicial scrutiny of counsel’s performance must be highly deferential, and an appellate court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; to overcome the presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms
2. absent evidence to the contrary, a jury is presumed to have complied with the judge’s instructions

Trial Stages: Merits: Mistrial

1. a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings
2. the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members; curative instructions are the preferred remedy, and absent evidence to the contrary, a jury is presumed to have complied with the judge’s instructions
3. in this case, where the government counsel improperly alleged that a witness testifying as to an adultery specification had been bribed, the military judge did not abuse his discretion where he declared a mistrial as to the adultery specification but not the other alleged offenses and where he issued curative instructions to the members informing them that the bribery allegations were unsubstantiated and instructing them to disregard all of that witness’s testimony and any inferences that anyone had attempted to bribe a witness in this case

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews assertions of ineffective assistance of counsel de novo
2. to prevail on an ineffective assistance claim, an appellant bears the burden of proving that the performance of his defense counsel was deficient and that he was prejudiced by the error; judicial scrutiny of counsel’s performance must be highly deferential, and an appellate court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; to overcome the presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms
3. absent clear evidence of an abuse of discretion, an appellate court will not reverse a military judge’s determination on a motion for mistrial