This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant/Cross-Appellee
v.
Patrick CARTER, Master Sergeant
United States Air Force, Appellee/Cross-Appellant
Nos. 17–0079 & 17-0086
Crim. App. No. 38708
Argued May 9, 2017—June 5, 2017
Military Judge: J. E. Kastenberg
For Appellant/Cross-Appellee: Major Meredith L. Steer
(argued); Colonel Katherine E. Oler, Major Mary Ellen
Payne, and Gerald R. Bruce, Esq. (on brief).
For Appellee/Cross-Appellant: Major Johnathan D. Legg
(argued); Brian L. Mizer, Esq. (on brief).
Judge RYAN delivered the opinion of the Court, in
which Chief Judge ERDMANN and Judges STUCKY,
OHLSON, and SPARKS, joined.
_______________
Judge RYAN delivered the opinion of the Court.
Under Article 67(a)(2), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 867(a)(2) (2012), the Judge Advocate
General of the Air Force (TJAG) certified the following issue:
Whether the Air Force Court of Criminal Appeals
(AFCCA) erred by finding that the convening au-
thority exceeded the scope of AFCCA’s remand
when he referred Appellant’s case to an “other” tri-
al under R.C.M. 1107(e)(2) following AFCCA’s orig-
inal remand decision.
We answer the certified question in the negative. Article
66(d), UCMJ, presents a binary choice: a Court of Criminal
Appeals (CCA) may order a rehearing and, if it does not or-
der a rehearing, it shall dismiss the charges. 10
U.S.C. § 866(d) (2012). In this case the United States Air
Force Court of Criminal Appeals (AFCCA) did not order a
rehearing. Instead, it set aside and dismissed the charges.
United States v. Carter, No. 17-0079/AF & 17-0086/AF
Opinion of the Court
Under these circumstances, the convening authority was not
authorized to order any further proceedings. 1
I. PROCEDURAL HISTORY
In 2010, a panel of members sitting as a general court-
martial convicted Appellee, contrary to his pleas, of one
specification each of indecent acts with a child under the age
of sixteen and child endangerment, in violation of Article
134, UCMJ, 10 U.S.C. § 934 (2012). Appellee was also con-
victed of one specification of taking indecent liberties with a
child under the age of sixteen, in violation of Article 120,
UCMJ, 10 U.S.C. § 920 (2012), though the convening author-
ity disapproved this finding. The panel adjudged a sentence
of four years of confinement, forfeiture of all pay and allow-
ances, a dishonorable discharge, and a reduction to the rank
of E-1, but the convening authority only approved three
years of confinement, forfeiture of all pay, a dishonorable
discharge, and a reduction to the rank of E-1. On January 4,
2013, the AFCCA concluded that the Article 134, UCMJ,
charge failed to state an offense, prejudicing Appellant:
In sum, we can find nothing in the record that
reasonably placed the appellant on notice of the
Government’s theory as to which clause of the ter-
minal element of Article 134, UCMJ, he had violat-
ed. Given the mandate set out by our superior court
in Humphries, we are compelled to set aside and
dismiss Charge III and its specifications.
....
Having considered the record in light of Hum-
phries, the findings of guilty as to Charge III and
1 We also granted review of five additional issues. Three of those
issues ask whether a judge could simultaneously sit on a CCA and
on the United States Court of Military Commissions Review
(USCMCR). In United States v. Ortiz, we held that appointment to
the USCMCR does not violate the Appointments Clause with re-
gards to service on a CCA, nor does it interfere with an otherwise
valid statutory authorization to serve on a CCA. 76 M.J. __
(C.A.A.F. 2017). In accordance with Ortiz, we resolve these three
issues in favor of the Government. The two remaining issues ask
whether Appellee was denied due process by an unreasonable de-
lay in the appellate process and whether Appellee’s prosecution
was barred by the statute of limitations. We decline to address
these two issues in light of our disposition of the first issue.
2
United States v. Carter, No. 17-0079/AF & 17-0086/AF
Opinion of the Court
its specifications and the sentence are set aside and
dismissed. The record of trial is returned to the
Judge Advocate General for remand to an appro-
priate convening authority.
United States v. Carter, No. ACM 37715, 2013 CCA LEXIS
1, at *8–12, 2013 WL 376304, at *3–4 (A.F. Ct. Crim. App.
Jan. 4, 2013) (unpublished) (footnote omitted). This Court
affirmed that decision on August 2, 2013. United States v.
Carter, 72 M.J. 457, 457 (C.A.A.F. 2013). On March 21,
2014, the convening authority ordered a second court-
martial: “Pursuant to the authority of [Rule for Courts-
Martial (R.C.M.)] 1107(f)(2), a new trial is hereby ordered.”2
On May 17, 2014, the convening authority referred charges
that were identical to the previously dismissed Article 134,
UCMJ, charges, except that they now alleged the “service
discrediting” element. Appellee was convicted at this second
trial on July 24, 2014, after which the panel adjudged and
the convening authority approved a sentence of forty months
of confinement, forfeiture of all pay and allowances, and re-
duction to the rank of E-1.
II. AFCCA DECISION
In his second appearance at the AFCCA, Appellee argued
that the referral of the second trial was void because the
AFCCA had previously set aside and dismissed the charge
and its specifications without authorizing any further pro-
ceedings as part of its remand. The AFCCA agreed:
Senior Judge Mitchell and I hold that the con-
vening authority, upon receiving the record of trial
on remand from this court, was only authorized to
issue a final order effectuating our previous dismis-
sal of the specifications.…
....
The findings of guilty of Specifications 1 and 2
of the Charge are set aside, and the Charge and
those specifications are dismissed with prejudice.
2 This reference to R.C.M. 1107(f)(2) is probably a typograph-
ical error. The 2012 version of R.C.M. 1107(f)(2) deals with modifi-
cation of an initial action before it has been published, not new or
“other” trials. It appears that the convening authority intended to
refer to R.C.M. 1107(e)(2), which purports to grant a convening
authority the ability to authorize an “other” trial.
3
United States v. Carter, No. 17-0079/AF & 17-0086/AF
Opinion of the Court
United States v. Carter, No. ACM 38708, 2016 CCA LEXIS
432, at *36–37, 2016 WL 4191494, at *12 (A.F. Ct. Crim.
App. July 21, 2016) (unpublished).
III. DISCUSSION
This Court reviews questions of jurisdiction and statuto-
ry interpretation de novo. EV v. United States, 75 M.J. 331,
333 (C.A.A.F. 2016); United States v. Atchak, 75 M.J. 193,
195 (C.A.A.F. 2016). Article 66(d), UCMJ, provides:
If the [CCA] sets aside the findings and sentence, it
may, except where the sentence is based on lack of
sufficient evidence in the record to support the find-
ings, order a rehearing. If it sets aside the findings
and sentence and does not order a rehearing, it
shall order that the charges be dismissed.
We recently explained that “[t]he text of Article 66(d),
UCMJ, does not obligate a CCA to authorize a rehearing.
The statute says that a CCA may order a rehearing; it does
not say that it must.” Atchak, 75 M.J. at 195.
As the AFCCA majority in Appellee’s case explained:
“Although the opinion contained language about a possible
rehearing, it did not authorize one. If this was unclear to the
Government in January 2013, then its obligation was to file
for reconsideration and/or review of our decision.” Carter,
2016 CCA LEXIS 432, at *30, 2016 WL 4191494, at *10
(concluding that the first Carter holding did not authorize a
rehearing). We agree with the AFCCA’s interpretation of its
own holding. It is apparent from the decretal language in its
first opinion that the AFCCA did not authorize a rehearing.
2013 CCA LEXIS 1, at *12, 2013 WL 376304, at *4.
Because the AFCCA did not authorize a rehearing, the
convening authority was without power to order one. It is
well established that in a case subject to review under Arti-
cle 66, UCMJ, a convening authority “loses jurisdiction of
the case once he has published his action or has officially no-
tified the accused” of that action. United States v.
Montesinos, 28 M.J. 38, 42 (C.M.A. 1989). At that point, the
“only further contact that the convening authority has with
the case occurs in the event of a remand” or the exercise of
his clemency powers. Id.
4
United States v. Carter, No. 17-0079/AF & 17-0086/AF
Opinion of the Court
Here, the AFCCA did remand the case. But even when
acting on remand, a convening authority may still only take
action “that conforms to the limitations and conditions pre-
scribed by the remand.” See id. at 44. The AFCCA’s remand
“did not purport to confer upon [the] convening authority all
the powers that a convening authority would have possessed
on the initial appellate review of the case pursuant to Article
60.” Cf. id. at 42. Instead, the convening authority acted “by
delegation from the [CCA]—to which he was subordinate”
because he possessed “no independent statutory authority at
that time to act on the findings and sentence.” See id. at 44;
see also Article 66(e), UCMJ (“[TJAG] shall . . . instruct the
convening authority to take action in accordance with the
decision of the [CCA].” (emphasis added)). The convening
authority ventured beyond the scope of the remand by order-
ing a rehearing where no rehearing was provided for in the
remand order. Cf. United States v. Riley, 55 M.J. 185, 188
(C.A.A.F. 2001) (holding that the lower court exceeded the
scope of the mandate by reinstating a greater offense follow-
ing a remand to determine whether the evidence was legally
insufficient to support a lesser included offense).
We decline the Government’s invitation to cast this re-
hearing as an “other trial,” convened pursuant to R.C.M.
1107(e)(2), where the AFCCA dismissed the charges and did
not authorize a rehearing pursuant to its authority under
Article 66(d), UCMJ.
IV. DECISION
The Air Force Court of Criminal Appeals did not author-
ize a rehearing and Appellee’s second court-martial exceeded
the scope of the remand order. The decision of the United
States Air Force Court of Criminal Appeals is affirmed.
5