Filed: Mar. 28, 2019
Latest Update: Mar. 03, 2020
Summary: Appellant argues his trial defense team was ineffective.Appellants lead defense counsel informed appellant that he could not, ethically offer the prior testimony of Gerard Carter as evidence in appellants court-, martial because it was clearly perjured. United States v. Akbar, 74 M.J. UCMJ, arts.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and SCHASBERGER
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class GERALD R. CARTER, JR.
United States Army, Appellant
ARMY 20160770
Headquarters, Fort Drum
S. Charles Neill, Military Judge
Colonel Peter R. Hayden, Staff Judge Advocate
For Appellant: Captain Oluwaseye Awoniyi, JA; Zachary Spilman, Esquire (on
brief, reply brief, and brief on specified issue).
For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Jeremy Watford, JA
(on brief); Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA;
Captain Allison L. Rowley, JA (on brief on specified issue).
28 March 2019
---------------------------------
MEMORANDUM OPINION
---------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent .
MULLIGAN, Senior Judge:
Appellant argues his trial defense team was ineffective. Appellant’s argument
involves mistaken identity, fraternal betrayal, technological mystery, and a healthy
dose of bad luck. The argument is ambitious and engaging, it is also wrong.
A panel with enlisted representation sitting as a general court-martial
convicted appellant, contrary to his pleas, of five specifications of sexual abuse of a
child, one specification of extortion, and two specifications of possession of child
pornography, in violation of Articles 120b, 127, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 920b, 927, and 934 [UCMJ]. The panel sentenced appellant to
a dishonorable discharge and eight years of confinement. The convening authority
CARTER—ARMY 20160770
approved the findings and sentence as adjudged. Appellant’s case is now before us
for review under Article 66, UCMJ.
Appellant has raised eight assignments of error. We discuss two. First, we
address appellant’s claim of ineffective assistance of counsel. Second, we briefly
address the appropriateness of appellant’s sentence. After careful consideration, we
conclude no other assignments of error merit discussion and none merit relief.
BACKGROUND
Private First Class Gerald R. Carter, Jr. led a double life. While married, he
used the “Kik” messenger application on his smartphone to carry on sexually
explicit conversations with underage girls. Perhaps because he was married, or
perhaps because his lewd exchanges with girls fourteen-to-sixteen years of age were
plainly criminal, appellant conducted his illicit activities under the nom de guerre
“Julio Carter.”
Appellant engaged in multiple lewd exchanges with underage girls. These
exchanges included both sexually explicit language and sexually explicit images of
appellant nude. Appellant also received sexually explicit images of an underage
girl. Appellant extorted the girl into providing him additional nude images of
herself by threatening to tell her parents about the images she had already provided
him if she did not provide more.
When appellant’s misconduct was uncovered, he claimed to be the victim of
mistaken identity. Appellant told his defense counsel that it was not he who
engaged in depraved conduct with underage girls, but instead his brother, Gerard
Carter. 1 As far as the record shows, nobody but appellant has ever seen Gerard
1
On brief, the government posits that “Gerard Carter” was not who he claimed to be.
Appellant’s Questionnaire for National Security Positions (SF 86) is included in the
pretrial allied documents. On the form, appellant listed the names, addresses, and
birthdates of four half-brothers and no full-brothers. None of the half-brothers were
named “Gerard,” and none had a birthdate consistent with that of “Gerard” based on
his Article 32 testimony. The SF 86, however, is not properly before this court. As
appellant has raised a claim of ineffective assistance of counsel, both he and the
government may move to attach matters to the record to support or rebut appellant’s
allegation. In fact, appellant has submitted an affidavit under penalty of perjury
explicitly claiming to have a brother named “Gerard Carter” and explicitly claiming
his SF 86 is incorrect. We need not decide whether appellant lied on his sworn
affidavit to this court or lied on his SF 86. Despite both the government and
appellant referring to the SF 86, neither party has moved to attach it as an appellate
(continued . . .)
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Carter, but appellant’s defense counsel telephonically interviewed him and called
him as a telephonic witness at appellant’s Article 32 preliminary hearing. Gerard
claimed that he had visited appellant during June of 2015, the timeframe of most of
appellant’s misconduct. Gerard claimed that he stayed at appellant’s residence near
Fort Drum, New York, and appellant let him use appellant’s smartphone while
appellant was temporarily at Fort Polk, Louisiana. Gerard testified that while
appellant was in Louisiana, Gerard used appellant’s phone in New York to engage in
the conduct with underage girls of which appellant was eventually convicted.
After providing testimony at appellant’s Article 32 hearing, Gerard Carter
only once responded to government attempts to contact him. He hung-up on a
government paralegal who attempted to arrange for his travel as a witness in
appellant’s court-martial, and he ultimately terminated service of his own telephone
number. Government attempts to serve Gerard Carter with a subpoena were returned
as “undeliverable.” As such, the government could not produce Gerard Carter at
appellant’s court-martial.
Appellant was provided an expert digital forensic examiner (DFE) as a
member of his defense team. As part of appellant’s defense team, the DFE reviewed
the digital evidence in appellant’s case. In short, the DFE concluded Gerard Carter
was lying at the Article 32 hearing. The DFE concluded metadata of photographs
taken by appellant demonstrated appellant was in possession of the smartphone in
question when it was used for the criminal communications. The DFE concluded it
was “a matter of fact, and not one of opinion” that appellant was in possession of the
smartphone used in appellant’s crimes at all relevant times. The DFE concluded
appellant “was being untruthful” with his defense counsel. The DFE determined that
appellant “had taken pictures in and around Fort Polk, LA with the very camera
phone [he] had claimed was left with his brother in and around the Fort Drum, NY
area during the time of the charged offenses.”
Appellant’s lead defense counsel informed appellant that he could not
ethically offer the prior testimony of Gerard Carter as evidence in appellant’s court-
martial because it was clearly perjured. Appellant then proposed an alternate
explanation to his defense counsel that involved the theory that he shared certain
(. . . continued)
exhibit. Thus, we do not consider the SF 86 in reaching our decision. See United
States v. Cade, 75 M.J. 923, 928 (Army Ct. Crim. App. 2016). The Clerk of Court is
directed to forward a copy of this opinion to appellant’s commander for
consideration of what, if any, action is appropriate regarding the discrepancy
between appellant’s submission to this court and his submission for his security
clearance.
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CARTER—ARMY 20160770
information between a smartphone in his possession near Fort Polk and a smartphone
in Gerard’s possession near Fort Drum. Appellant’s defense counsel dutifully
requested input from his DFE on appellant’s newly-spun tale. Appellant’s DFE
reported appellant’s alternate explanation was also incompatible with the metadata
recovered from appellant’s phone.
Appellant’s defense counsel explained to appellant that if appellant wanted to
present his alternate tale to the panel, he would have to do so through his own
narrative-format testimony. Ultimately, appellant chose not to testify, and his
defense counsel did not attempt to admit any of Gerard Carter’s telephonic
testimony from the Article 32 hearing.
Consistent with appellant’s own DFE’s analysis, the government presented
evidence that metadata on appellant’s phone conclusively linked the phone to
appellant at all relevant times. The Government further presented evidence that
appellant’s phone connected to cellular towers near Fort Polk, Louisiana, at times
when appellant was stationed at Fort Polk. The content of appellant’s phone
revealed numerous sexually explicit communications with underage girls. Some of
appellant’s communications with underage girls led to his receipt of sexually
explicit images of an underage girl. Appellant used those sexually explicit images
to extort the girl for yet more sexually explicit images. 2
2
Prior to filing his brief on appeal, appellant filed a “Motion for Leave to File an Ex
Parte Motion under Seal.” Appellant’s proposed motion would have requested this
court to subpoena records from a third-party civilian entity. Appellant averred the
proposed subpoena would return information that “might be exculpatory,
inculpatory, or neither.” We denied appellant’s motion for several reasons. One
reason bears mention here. We—as opposed to the courts-martial whose cases we
review—do not have the authority to issue subpoenas to third-party civilians.
Appellant cited United States v. Lewis, 42 M.J. 1, 5 (C.A.A.F. 1995), as authority to
the contrary. We did not, however, read Lewis to authorize us to issue appellant’s
proposed subpoena. We reached this conclusion for at least three reasons. First, the
language in Lewis on which appellant relies is dicta, stating “if necessary, the court
could have issued a subpoena to enforce its order.”
Id. Hypothetical courses of
action are quintessential dicta beyond the strict holding of a judicial opinion.
Second, Lewis involved compelling affidavits from defense counsel regarding their
actions in the case under review. Lewis did not contemplate issuing a subpoena to
third-party civilians previously uninvolved with the case under review. Third, after
Lewis, our superior court held another service court of criminal appeals exceeded its
statutory authority by ordering the production of and relying upon “an extra-record,
after-the-fact affidavit” from a military commander. United States v. Watson,
69
M.J. 415, 420 (C.A.A.F. 2011). See also Clinton v. Goldsmith,
526 U.S. 529 (1999)
(continued . . .)
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CARTER—ARMY 20160770
LAW AND DISCUSSION
Appellant argues his counsel were ineffective by not admitting Gerard
Carter’s Article 32 testimony at his court-martial. Alternatively, in his reply brief,
appellant argues his counsel were ineffective by failing to investigate his story
sufficiently to avoid “pinning appellant’s defense on” his claim that Gerard
committed the crimes of which appellant was eventually convicted.
Appellant also argues that his sentence to a dishonorable discharge and eight
years of confinement is inappropriately severe because appellant’s convictions are
for what appellant characterizes as “non-contact offenses with girls who freely
exchanged explicit messages [with appellant].”
We disagree with both of appellant’s arguments. Our analysis begins with
appellant’s claim of ineffective assistance of counsel, then briefly moves to the
appropriateness of appellant’s sentence.
A. Appellant’s Claim of Ineffective Assistance of Counsel
We review claims that an appellant received ineffective assistance of counsel
de novo. United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015); United States v.
Datavs,
71 M.J. 420, 424 (C.A.A.F. 2012). “In order to prevail on a claim of
ineffective assistance of counsel, an appellant must demonstrate both (1) that his
counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green,
68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing
Strickland v. Washington,
466 U.S. 668, 687, (1984)).
Under the first Strickland prong, appellant must show “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” 466 U.S. at 687. In assessing counsel’s performance,
“we do not measure deficiency based on the success of a trial defense counsel’s
strategy, but instead examine whether counsel made an objectively reasonable choice
in strategy from the available alternatives.”
Akbar, 74 M.J. at 379 (citing United
States v. Dewrell,
55 M.J. 131, 136 (C.A.A.F. 2001)) (internal quotation marks
omitted). Courts “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S.
at 689. “Strategic choices made after thorough investigation of law and facts
(. . . continued)
(narrowly construing a military appellate court’s jurisdiction to issue extraordinary
writs). Even if we had authority to issue the subpoena appellant requested, we
would not have done so given its ex parte and speculative nature.
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CARTER—ARMY 20160770
relevant to plausible options are virtually unchallengeable; and strategic choices
made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.” Id.
at 690-91.
To demonstrate prejudice, appellant must show “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Green, 68 M.J. at 362 (citing
Strickland,
466 U.S. at 698).
We conclude appellant’s argument fails both prongs of Strickland analysis.
Appellant’s defense counsel’s decision not to present the Article 32 testimony of
Gerard Carter was reasonable. Indeed, it was the objectively correct decision.
Further, even if the Article 32 testimony had been offered at appellant’s court-
martial, it would not have affected the outcome because it was subject to clear
factual refutation.
We reach our conclusion for three reasons: First, a defense counsel has an
ethical duty not to knowingly present false evidence to a court-martial. Second,
appellant’s defense counsel had more than a sufficient basis to conclude Gerard
Carter lied in his testimony at appellant’s Article 32 hearing. Third, Gerard’s lies
were susceptible to factual rebuttal by evidence presented by the government.
1. The Subornation of Perjury
A lawyer may not knowingly “offer evidence the lawyer knows to be false.”
Dep’t of Army Pam. 27-26, Legal Services: Rules of Professional Conduct for
Lawyers [DA Pam. 27-26], para. 3.3(a)(4) (1 May 1992) (emphasis added). “A
lawyer may refuse to offer evidence that the lawyer reasonably believes is false.”
DA Pam. 27-26, para 3.3(c) (emphasis added). 3 In other words, if a lawyer knows
evidence is false, the lawyer is prohibited from offering it. If a lawyer does not
know evidence is false, but reasonably believes it is false, the lawyer may refuse to
offer such evidence without violating the standards of professional conduct.
While an accused has a right to testify and a right to present a defense, an
accused has no right to commit perjury. Nix v. Whiteside, 475 U.S. 157, 173 (1986).
3
This was the version of DA Pam. 27-26 in effect at the time of appellant’s court-
martial. The Rules of Professional Conduct have since been updated and the updated
version reaches the same result on this point. See Dep’t of Army Pam. 27-26, Legal
Services: Rules of Professional Conduct for Lawyers, para. 3.3(a)(3) (28 June 2018).
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CARTER—ARMY 20160770
Neither does an accused have a right to suborn perjury or present false evidence.
Consequently, it is not ineffective for an attorney to refuse to present false evidence
on behalf of a client. See id. at 175. 4
A claim of ineffective assistance based on defense counsel’s refusal to offer
false evidence also fails the second prong of Strickland. See id. An accused “has no
entitlement to the luck of a lawless decisionmaker.”
Id. (quoting Strickland, 446
U.S. at 695). Similarly, an accused has no entitlement to a verdict based on the
lawless presentation of false evidence.
2. The Bounds of Credulity
Appellant’s defense counsel had ample basis to conclude Gerard Carter’s
testimony at the Article 32 hearing was materially false. As explained in the lead
defense counsel’s affidavit responding to appellant’s claims of ineffective
assistance, the defense team’s own DFE confirmed that Gerard’s testimony could not
have been true. If this were merely the DFE’s opinion, perhaps appellant’s counsel
would have had the discretion to choose whether or not to offer Gerard’s testimony
under the permissive rule that a lawyer may refuse to offer evidence that the lawyer
reasonably believes is false. The DFE, however, informed appellant’s counsel that
the impossibility of Gerard’s testimony based on the digital evidence was “a matter
of fact and not one of opinion.” As such, appellant’s counsel assessed he was bound
by the mandatory rule that a lawyer may not knowingly offer evidence the lawyer
knows to be false.
Appellant’s defense counsel had more than enough information to reasonably
conclude Gerard’s story was false. Gerard’s Article 32 testimony strained the
bounds of credulity to begin with, but we understand that defense counsel may
ethically accept improbable—though nevertheless possible—explanations at face-
value. Once appellant’s DFE demonstrated Gerard’s story could not possibly be
true, appellant’s counsel was well-within the bounds of lawful, ethical, and effective
representation to refuse to take any further part in presenting false evidence on
appellant’s behalf.
Defense counsel was also well-within the bounds of lawful, ethical, and
effective representation not to present evidence on appellant’s alternative
explanation involving the use of two smartphones with the same applications.
Appellant’s DFE explained that appellant’s alternate theory was also inconsistent
with the digital evidence. Further, the circumstances under which appellant
4
Perjury and subornation of perjury are crimes in their own right. UCMJ, arts. 131,
134; Manual for Courts-Martial, United States, pt. IV ¶ 98 (2016 ed.).
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CARTER—ARMY 20160770
proffered this new theory—in the middle of trial and in response to being caught in a
lie—plainly demonstrated appellant’s alternate theory was fabricated in response to
his counsel’s refusal to present Gerard’s false testimony.
Appellant has also claimed, in his reply brief, that his defense counsel were
ineffective by not investigating appellant’s version of events thoroughly enough to
sooner realize that appellant’s story was false. Put differently, appellant claims his
defense counsel breached a duty to appellant to discover appellant had been lying to
them and prevent appellant’s lies from undermining appellant’s defense. We think
not.
Appellant’s counsel took reasonable steps to investigate appellant’s initial
story by telephonically interviewing Gerard Carter, who supported appellant’s
claims. In hindsight, it is clear appellant and Gerard were lying. We do not,
however, evaluate the reasonableness of defense counsel’s choices based on
hindsight. Strickland, 466 U.S. at 689. Instead, we evaluate whether counsel’s
conduct was reasonable in light of what counsel knew at the time.
Id. A defense
counsel is neither a mind-reader nor a magician. Defense counsel cannot force a
client to tell the truth, even though doing so would be in the client’s best interest.
Neither can a defense counsel divine that a client has colluded with others to deceive
the defense counsel. An appellant may not profit on appeal by successfully
misleading his own counsel before trial. If appellant’s defense was undermined by
appellant’s lies to his own lawyers, appellant has only one person to blame: himself.
See generally Pooler v. Florida Department of Corrections,
702 F.3d 1252, 1271
(11th Cir. 2012) (surveying cases where defense counsel were not ineffective for
failing to discover their clients’ misrepresentations and material omissions after
reasonable investigation in the form of family interviews).
Far from being ineffective, appellant’s defense counsel operated as well as
could reasonably be asked of a defense team struggling with a client who persisted
in misleading them at every turn. Defense counsel made objectively reasonable
choices in response to the evidence they were presented. Appellant’s defense
counsel exercised reasonable professional judgment within the bounds of their
ethical responsibilities, and made reasonable strategic choices in response to the
twists and turns of falsehood appellant threw their way. 5
5
Appellant relies heavily upon the affidavit of his assistant trial defense counsel,
which appellant filed contemporaneously with his opening brief to this court. In her
affidavit to this court, appellant’s assistant defense counsel appeared oblivious to
the fact that ineffective assistance of counsel is a question of the representation
provided by the entire defense team. See United States v. McConnell, 55 M.J. 479,
481 (citing United States v. Boone,
42 M.J. 308, 313 (1995)). Little more need be
(continued . . .)
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CARTER—ARMY 20160770
3. The Surfeit of Evidence
Even if appellant’s defense counsel had presented Gerard Carter’s Article 32
testimony, 6 there is no reasonable probability the outcome of appellant’s trial would
be different. The government presented definitive evidence that appellant possessed
the smartphone used to commit his crimes at all relevant times, including when
appellant was in Louisiana. Had appellant’s counsel offered Gerard’s prior
testimony, it would have been overwhelmed in an avalanche of digital forensic
evidence to the contrary.
The metadata associated with appellant’s phone conclusively refutes any
claim appellant left his phone with Gerard Carter in New York. Further piling on
the evidence against appellant, the government demonstrated that appellant’s phone
connected to a cellular tower near Fort Polk, Louisiana, at times when appellant was
at Fort Polk but Gerard claimed he possessed appellant’s phone in New York. The
digital evidence is extensive and consistent with only one conclusion: appellant used
his smartphone to commit the offenses of which he was convicted. Both Gerard’s
testimony at the Article 32 hearing, and appellant’s alternative theory regarding the
sharing of data between two phones are conclusively disproved by a surfeit of
evidence to the contrary.
B. Sentence Appropriateness
Appellant argues his sentence is inappropriately severe. We disagree.
Appellant, a married adult and a soldier in the United States Army, trolled social
media for vulnerable underage girls he could sexually exploit.
Appellant claims that his crimes constitute “non-contact offenses with girls
who freely exchanged explicit messages [with appellant].” Appellant’s contention is
misplaced both conceptually and factually.
(. . . continued)
said about her apparent misconception, as the lead defense counsel ably explained
that the assistant defense counsel was not present for discussions with the DFE
regarding the factual impossibility of Gerard’s story and appellant’s alternative
theory. It suffices to observe that the effectiveness of counsel is assessed on a team
basis, and the totality of the representation appellant received met this standard.
6
We do not decide the question of whether the Rules of Evidence permit the
presentation of prior telephonic testimony of a person whose identity cannot be
independently verified.
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Whether appellant’s graphic sexual interactions with children were “freely
exchanged” misses the point that these “free exchanges” were with children, who
appellant knew were children. Nevertheless, appellant engaged children in graphic
sexual dialogue, sent sexually explicit images to children, and received sexually
explicit images of children from children.
When appellant received sexually explicit images from one girl, he used those
images to extort further sexual images from her. Far from being a “free exchange,”
appellant’s conduct was literally extortionate. Appellant ruthlessly preyed on
children to fulfill his own sexual desires. We find nothing inappropriate in
appellant’s sentence, and have no hesitation in affirming it.
CONCLUSION
Appellant’s claim of ineffective assistance collapses under the weight of the
evidence against him. Appellant’s defense team acted ethically and effectively
despite appellant’s efforts to lead them down the path of falsehood. Appellant’s
sentence is appropriate to his crimes. We have considered the remainder of
appellant’s assignments of error and find they merit neither discussion nor relief.
The findings of guilty and sentence are AFFIRMED.
Judge FEBBO and Judge SCHASBERGER concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
10
