This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
        Gerald R. CARTER Jr., Private First Class
               United States Army, Appellant
                          No. 19-0382
                    Crim. App. No. 20160770
         Argued February 11, 2020—Decided April 29, 2020
                 Military Judge: S. Charles Neill
   For Appellant: Captain Alexander N. Hess (argued); Colonel
   Elizabeth G. Marotta, Lieutenant Colonel Tiffany D. Pond,
   and Major Kyle C. Sprague (on brief).
   For Appellee: Captain Karey Marren (argued); Colonel Ste-
   ven P. Haight, Lieutenant Colonel Wayne H. Williams, and
   Major Craig J. Schapira (on brief); Captain Brian D. Jones.
   Chief Judge STUCKY delivered the opinion of the Court,
   in which Judges RYAN, OHLSON, SPARKS, and
   MAGGS, joined.
                    _______________

   Chief Judge STUCKY delivered the opinion of the Court.
    We granted review to determine: (1) whether trial defense
counsel was ineffective when he did not introduce at trial a
potentially exculpatory recording of Appellant’s brother con-
fessing to the crimes for which Appellant was being court-
martialed; (2) whether the military judge abused his discre-
tion by not granting a mistrial for all charges and specifica-
tions; and (3) whether the military judge committed plain er-
ror by admitting evidence of historical cell site location data
obtained without a warrant. We decide all three issues in the
negative and affirm the decision of the lower court.
    A general court-martial with officer and enlisted members
found Appellant guilty, contrary to his pleas, of five specifica-
tions 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 Mil-
itary Justice (UCMJ), 10 U.S.C. §§ 920b, 927, 934 (2012). The
             United States v. Carter, No. 19-0382/AR
                      Opinion of the Court

panel sentenced Appellant to a dishonorable discharge and
eight years of confinement. The convening authority ap-
proved the sentence as adjudged, and the U.S. Army Court of
Criminal Appeals affirmed the findings and sentence. United
States v. Carter, No. ARMY 20160770, 2019 CCA LEXIS 140,
at *2, 

, at *1 (A. Ct. Crim. App. Mar. 28,
2019) (unpublished).
                         I. Background
    During the relevant time frame, Appellant was stationed
at Fort Drum, New York. From June 3 to June 30, 2015, Ap-
pellant was temporarily assigned to Fort Polk, Louisiana, for
training. Both before and during Appellant’s training assign-
ment at Fort Polk, a Kik1 user with the nom de plume “Julio
Carter” exchanged nude images and communicated indecent
language to several young girls, and extorted nude images
from another. A week after Appellant’s return to Fort Drum,
special agents from Army Criminal Investigation Command
(CID) searched his phone and discovered “Julio Carter’s” Kik
account, with the incriminating messages and photos. Addi-
tional facts are included below as necessary.
             II. Ineffective Assistance of Counsel
                      A. Additional Facts
    In March of 2016, at the Article 32, UCMJ, 10 U.S.C. § 832
(2012), preliminary hearing, a man identifying himself as Ap-
pellant’s brother, Gerard, appeared telephonically and stated
that he borrowed Appellant’s phone while Appellant was
away at Fort Polk, and used it to send and solicit the nude
images from the young girls. At the same hearing, Appellant’s
wife corroborated this story, telephonically, saying that she
remembered Appellant getting a new phone with a new num-
ber when he went to Fort Polk in June 2015.
    Trial defense counsel understood the Article 32, UCMJ,
testimony to be that the phone investigators had seized from
Appellant, which contained the incriminating photos and
messages, was in Gerard’s possession in June of 2015 and
that Appellant used a different phone while at Fort Polk.


   1  Kik is a peer-to-peer messaging application that allows users
to send photos, texts, and videos.



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                      Opinion of the Court

Trial defense counsel hired a digital forensic examiner (DFE)
to examine the metadata from the seized phone to determine
whether it supported Gerard’s confession. It did not. The DFE
told trial defense counsel that some of the photos on the phone
were taken at Fort Polk, and so the phone was with Appellant
at Fort Polk and not with Gerard at Fort Drum as Gerard
claimed in his confession.
    Appellant suggested an alternate explanation to his
defense counsel: there were two phones that shared an iCloud
account and the Kik messages were synched from the phone
at Fort Drum to the phone at Fort Polk.2 Before trial defense
counsel could verify this theory with the DFE, he gave his
opening statement. Relying on Appellant’s theory, trial
defense counsel promised members they would hear a
confession:
       DC: This case is about someone else, who is not here
       today. Who, you will hear accepted responsibility for
       these actions. You will hear testimony that at the
       preliminary hearing accused’s brother stated under
       oath … that his brother is completely innocent of
       these charges, that he assumed the identity of his
       brother to meet women…. You will hear their testi-
       mony and they took full responsibility of the charges
       in this case.
(Emphasis added.)
   Before his case-in-chief, trial defense counsel consulted
with the DFE on the alternate theory. The DFE elaborated on
his analysis, explaining that the metadata from the photos
confirmed that the incriminating photos were taken by the
device seized from Appellant, not synched from another
phone. Since this DFE’s analysis contradicted Gerard’s
testimony that he was in possession of the phone, trial
defense counsel believed the confession was false, and so did
not play the recording of Gerard’s telephonic confession for
the members.


   2 There is some dispute as to when the alternate theory was pre-
sented to the defense team. This is not relevant to the issue before
us—whether it was reasonable for defense counsel to doubt that the
“cloud synch” theory invalidated the DFE’s analysis of the forensic
evidence and the Article 32, UCMJ, testimony.



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             United States v. Carter, No. 19-0382/AR
                      Opinion of the Court

                             B. Law
    “We review assertions of ineffective assistance of counsel
de novo.” United States v. Bradley, 

, 16 (C.A.A.F.
2012) (citing United States v. Gooch, 

, 362
(C.A.A.F. 2011)). “To prevail on an ineffective assistance
claim, the appellant bears the burden of proving that the per-
formance of defense counsel was deficient and that the appel-
lant was prejudiced by the error.” United States v. Captain,

, 103 (C.A.A.F. 2016) (citing Strickland v. Washing-
ton, 

, 698 (1984)). “Judicial scrutiny of counsel’s
performance must be highly deferential.” 

. We “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.”

the presumption, an appellant
must “show specific defects in counsel’s performance that
were ‘unreasonable under prevailing professional norms.’ ”
United States v. Mazza, 

, 475 (C.A.A.F. 2009)
(quoting United States v. Perez, 

, 243 (C.A.A.F.
2006)).
    In this case, Appellant alleges that his trial defense coun-
sel was deficient by not presenting the recording of Gerard’s
confession at trial. However, trial defense counsel believed
the confession to be false, and the Rules of Professional Con-
duct prohibited counsel from introducing evidence that he
knew was false, and permitted counsel to refuse to offer evi-
dence he reasonably believed was false. See Dep’t of the Army,
Pam. 27-26, Legal Services, Rules of Professional Conduct for
Lawyers, para. 3.3(a)(4) (May 1, 1992). “Under [an attorney’s]
ethical obligations ..., the attorney cannot close his or her eyes
to the possibility that the proposed testimony is false.” United
States v. Baker, 

, 385 (C.A.A.F. 2003).
                         C. Discussion
                    i. Counsel’s Performance
   The Government’s primary evidence consisted of mes-
sages and images found on an iPhone 6, seized from Appel-
lant. Trial defense counsel understood Gerard’s confession to
be that Gerard was in New York, and used the phone seized
by CID to send messages and images to girls while Appellant
was in Louisiana. In a post-trial affidavit, the defense expert
explained that he told trial defense counsel that it was “a fact


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            United States v. Carter, No. 19-0382/AR
                     Opinion of the Court

and not an opinion” that this was false. Based on two conver-
sations with his own expert, and a similar report from the
Government expert, trial defense counsel reasonably believed
that Gerard’s confession was false, and so could refuse to offer
it at trial.
    On appeal to this Court, Appellant challenges the reason-
ableness of trial defense counsel’s belief by focusing on
whether the Kik messages could have synched across phones.
This was not the focus of trial defense counsel’s investigation,
and for good reason: even if the messages could have synched
between phones, Gerard’s confession was that he had Appel-
lant’s phone—the one seized by investigators. The DFE une-
quivocally stated that this was false. Finally, after consulta-
tion with trial defense counsel, Appellant agreed that it would
not be in his best interest to play the recording or to testify.
    On appeal, Appellant also argues that it was unreasonable
for trial defense counsel to mention the confession in his open-
ing argument. While it would have been better for Appellant
had trial defense counsel not promised the members that they
would hear a confession, Appellant bears responsibility for
encouraging his attorney to offer a false confession. Appellant
can hardly mislead his attorney and then fault him for believ-
ing and acting on his claims.
    Finally, Appellant argues that if trial defense counsel
could refuse to play the confession, because he believed it was
false, then he would also have had a duty to not argue the
cloud synch theory. This misapprehends counsel’s duties.
While trial defense counsel was prohibited from introducing
evidence he knew was false, he had a responsibility to sow
doubt in the minds of members, using the evidence presented
at trial.
    At trial, VG mentioned that she met with someone who
claimed to be Appellant’s brother. A CID agent testified that
Appellant mentioned his brother when he was initially ques-
tioned. Cloud synching came out during cross-examination of
a Government witness. Trial defense counsel argued all the
evidence that was properly admitted at trial, and appropri-
ately refused to submit evidence that he believed to be per-
jured. It was not unreasonable for trial defense counsel to rely
on his expert witness’s analysis of the forensic evidence. His



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conduct therefore “f[ell] within the wide range of reasonable
professional assistance” and was not ineffective. 

.
                         ii. Prejudice
   Finally, even if it were unreasonable for trial defense
counsel to not play the confession for the members, Appellant
cannot show prejudice. Though he did not play the perjured
confession for the members, trial defense counsel made a val-
iant effort to present a defense and there is no reasonable
probability that the outcome of the court-martial would have
been different had he played it. He elicited testimony that
some data can be synched over the cloud. He presented a wit-
ness who claimed to have met a “Julio Carter” who was not
Appellant. Indeed, it is likely that not playing the confession
helped Appellant, as the confession would have been immedi-
ately impeached by the Government forensic expert, resulting
in the brother theory being discarded altogether. Trial de-
fense counsel instead properly preserved the possibility of
doubt for the members without violating his ethical duties.
                         III. Mistrial
    Appellant’s second assigned issue is whether the military
judge abused his discretion by failing to order a complete mis-
trial for a government discovery violation.
                     A. Additional Facts
    In addition to the sexual offenses against children under
the age of sixteen, Appellant was charged with committing
adultery with a young woman, MR, who was seventeen at the
time of the alleged offense. MR took the stand at trial, osten-
sibly to identify Appellant as the man she had sex with. Her
testimony took a dramatic turn when she stated that Appel-
lant was not the man she met. The Government then asked
her if she had been offered $1000 to misidentify Appellant.
Trial defense counsel immediately objected and the military
judge took a recess to address the matter outside of the mem-
bers’ presence.
    At the subsequent Article 39(a), UCMJ, 10 U.S.C. §839(a),
session, trial defense counsel argued that the Government’s
failure to provide notice of the alleged payment was a serious
discovery violation that warranted a mistrial on all charges


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            United States v. Carter, No. 19-0382/AR
                     Opinion of the Court

and specifications. The military judge granted a mistrial as to
the adultery specification, but not the other offenses. Explain-
ing why a full mistrial was not warranted, the military judge
noted that the alleged payments were not attributed to the
accused and there was nothing connecting MR to any of the
other victims or crimes in the case. The military judge then
issued curative instructions to the members informing them
that he had conducted a hearing about the vague bribery al-
legations and found them unsubstantiated and instructing
them to disregard all of MR’s testimony and any inferences
that anyone attempted to bribe a witness in this case.
                    B. Law and Discussion
    A military judge “may, as a matter of discretion, declare a
mistrial when such action is manifestly necessary in the in-
terest of justice because of circumstances arising during the
proceedings which cast substantial doubt upon the fairness of
the proceedings.” Rule for Courts-Martial (R.C.M.) 915(a).
The Discussion to R.C.M. 915(a) cautions that “[t]he power to
grant a mistrial should be used with great caution, under ur-
gent circumstances, and for plain and obvious reasons,” in-
cluding times “when inadmissible matters so prejudicial that
a curative instruction would be inadequate are brought to the
attention of the members.” Consequently, “[a]bsent clear evi-
dence of an abuse of discretion, this Court will not reverse a
military judge’s determination on a motion for mistrial.”
United States v. Short, 

, 150 (C.A.A.F. 2018). Cu-
rative instructions are the preferred remedy, and “[a]bsent
evidence to the contrary, a jury is presumed to have complied
with the judge’s instructions.” United States v. Barron, 

, 5 (C.A.A.F. 1999) (quoting United States v. Rushatz,

, 456 (C.M.A. 1990)).
    Here, the military judge carefully considered the bribery
allegation’s effect on the trial. He ordered a mistrial for the
adultery specification, as trial defense counsel was in the “un-
tenable position of disputing bribery claims of a witness,
claims that were not disclosed until the middle of trial.” He
further instructed the members to disregard the testimony
and the bribery allegations. Although it is questionable




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             United States v. Carter, No. 19-0382/AR
                      Opinion of the Court

whether the military judge should have instructed the mem-
bers to disregard MR’s testimony in its entirety,3 Appellant
has not shown “clear evidence” that the military judge abused
his discretion by limiting the mistrial to the affected specifi-
cation. We therefore affirm the military judge’s mistrial de-
termination.
            IV. Historic Cellphone Location Data
    Appellant’s final assigned issue is whether the military
judge committed plain error by admitting into evidence Ap-
pellant’s historic cell site location information (CSLI) pursu-
ant to the Stored Communications Act (SCA), 18 U.S.C.
§ 2701, in violation of the Fourth Amendment. We hold that
he did not.
    The SCA does not contain a warrant requirement for
CSLI, and so the military judge in this case did not require
the Government to show probable cause before ordering
Sprint to turn over Appellant’s CSLI. After Appellant’s trial,
the Supreme Court determined that the Fourth Amendment’s
warrant requirement extended to seven days of historic cell-
site location data. United States v. Carpenter, 

,
2217 (2018). We need not decide whether the information
used in Appellant’s trial would violate Carpenter, as even if
so, it would be admissible in this case under the good faith
exception of Military Rule of Evidence (M.R.E.) 311(c)(4).
    M.R.E. 311(c)(4) codifies the Supreme Court’s holding in
Illinois v. Krull, and allows the admission of evidence that
would otherwise violate the Fourth Amendment if the “official
seeking the evidence acts in an objectively reasonable reli-
ance on a statute later held invalid under the Fourth Amend-
ment.” M.R.E. 311(c)(4); see also Illinois v. Krull, 

, 350 (1987). Here, the military judge relied on the SCA to
order Sprint to produce the CSLI. Since the SCA did not re-
quire a warrant, and it was objectively reasonable to rely on


   3 While MR  did testify that Appellant was not the man she com-
mitted adultery with, MR had not testified that she met “Julio,” and
so her negative identification of Appellant was not related to
whether Appellant was “Julio.” Further, Appellant presented an-
other witness, VG, who testified that she met “Julio” and he was
not Appellant.



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            United States v. Carter, No. 19-0382/AR
                     Opinion of the Court

it, M.R.E. 311(c)(4) renders the evidence admissible. There-
fore, the military judge did not commit plain error by admit-
ting evidence of Appellant’s CSLI.
                        V. Judgment
  The decision of the United States Army Court of Criminal
Appeals is affirmed.




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