On 7 January 2021, AFCCA released a unanimous, unpublished opinion affirming findings of guilty regarding Specification 7 of Charge II. However, the AFCCA set aside the words “with intent to distribute” and dismissed the finding as to the excepted words with prejudice. The AFCCA affirmed the findings, as modified, and the sentence, as reassessed.
Carter Opinion Here
Between, on or about November 2018 and on or about December 2018, Appellant, Kolby L.A. Carter, pleaded guilty to Specification 5 of Charge II for wrongfully distributing cocaine at or near Scott AFB on divers occasions, and on four occasions on Scott AFB, in violation of Art. 112a, UCMJ. On another occasion, Appellant obtained, and distributed cookies purported to contain marijuana to his girlfriend, friend, and fellow Airmen. While driving from acquiring cocaine and MDMA, Appellant was pulled over by agents of the United States Drug Enforcement Agency (DEA) [I] and unsuccessfully attempted to swallow the drug evidence to prevent agents from seizing the drugs. At the criminal trial and consistent with Appellant’s pleas, a single military judge convicted Appellant of two specifications of attempted distribution of a controlled substance, one Specification of attempted disposal of property with the intent to prevent seizure thereof, in violation of Art. 80, UCMJ; three Specifications alleging use of a controlled substance, in violation of Art. 112a, UCMJ; one Specification alleging distribution of a controlled substance; and one Specification alleging introduction of a controlled substance, in violation of Art. 112a, UCMJ. Appellant admitted to three uses of cocaine, and one use each of Adderall and LSD, in violations of Art. 112a, UCMJ.
Appellant pleaded not guilty to the use of MDMA on divers occasions but was adjudged guilty on 22 August 2019. Contrary to Appellant’s pleas, the military judge convicted Appellant of one Specification of attempted distribution of a controlled substance, in violation of Article 80, UCMJ, and one Specification of use of a controlled substance on a single occasion, in violation of Article 112a, UCMJ. The military judge sentenced Appellant to a bad-conduct discharge, confinement for 10 months, forfeiture of all pay and allowances, and reduction to E-1.
II. Carter’s Claims on Appeal
On appeal, Appellant raised three issues: (1) whether the military judge abused his discretion when he denied Appellant’s request to merge Specification 5 and Specification 7 of Charge II for sentencing; (2) whether the convening authority erred in denying Appellant’s request to defer adjudged and mandatory forfeitures, [ii]and failed to articulate his basis for the denial; (3) whether Appellant is entitled to sentence relief for post-trial delay.
A. Unreasonable Multiplication of Charges
Appellant alleges the military judge abused his discretion when he denied Appellant’s motion for relief based on claims of unreasonable multiplication of charges.
The military judge denied the accused’s “Defense Motion for Appropriate Relief IAW [R.C.M. 906(b)(12)] Unreasonable Multiplication of Charges” regarding Specifications 5 and 7 of Charge II. After applying the Quiroz factors [iii]as an “all-inclusive test,” he concluded that the charges and specification in totality did not misrepresent or exaggerate the Appellant’s criminality, unreasonably increase his punitive exposure, and found no evidence of prosecutorial overreaching or abuse. The military judge concluded that the introduction of cocaine with the intent to distribute and the actual distribution of the cocaine were “separate and specific criminal act[s],” and demanded “separate intents and separate actions.”
On appeal, the AFCCA held that the military judge’s denial of Appellant’s motion was incorrect, and his conclusions were unreasonable. Relying on analogous facts heard in a sister court, [iv]the AFCCA concluded that the military judge abused his discretion when he failed to address the aggregating language of “with intent to distribute,” determine how much time passed between Specifications 5 and 7 of Charge II, and failed to make clear that the Quiroz factors are neither an all-inclusive test nor an exhaustive list. Here, the AFCCA determined that the appropriate remedy is the dismissal of the aggravating language, “with the intent to distribute” from Specification 7 of Charge II.
B. Sentence Reassessment
Due to the affirmative conclusion regarding the multiplication of charges, the AFCCA considered the reassessment of Appellant’s sentence. Under Art. 59(a) UCMJ, 10 U.S.C. § 859(a), “unless the error materially prejudices the substantial rights of the accused,” legal error may not render a court martial sentence incorrect. To determine correctness, the AFCCA subjected the facts and circumstances, including Appellant’s record of performance, to the Winckelmann [v]factors.
The military judge failed to account for the additional ten years of exposure resulting from the sentence aggravator in Specification 7 of Charge II. However, the adjudged sentence of ten months’ confinement was significantly less than the maximum sentences of 75- or 85-years confinement and dishonorable discharge. Due to the modification of Specification 7 of Charge II, the AFCCA reassessed Appellant’s sentence and concluded that the military judge would have imposed the same sentence had he merged Specification 7 with Specification 5 or dismissed the offending language. [vi]
C. Action on Deferment Request
Appellant claims the convening authority abused his discretion by denying the Action requesting a deferment of forfeitures with no explanation, and he suffered prejudice as a result.
Appellant failed to address his burden under R.C.M. 1103(d)(2) in both his request to the convening authority and on appeal. Instead, Appellant argued that there was no reason to deny his request and that his wife, an active-duty Airman, was unfairly prejudiced by immediate forfeiture of his income. The AFCCA looked to the SJAR, recommending denial, and to the addendum for the convening authority’s reasoning to conclude otherwise. The AFCCA notes [vii]that neither Art. 57(b), UCMJ, nor R.C.M. 1103(d)(2) states that the basis for denial should be in writing and that a written basis for denial requirement has been out of practice since Sloan. This issue is considered forfeited and therefore reviewed for plain error. Considering the record and Appellant’s failure to present a case for prejudice, the AFCCA holds that the convening authority did not abuse his discretion in denying Appellant’s request for forfeiture deferment and that Appellant failed to demonstrate “even a colorable showing” of resulting prejudice.
D. Post-Trial Processing Delay
Appellant claims entitlement to relief from post-trial processing delays under United States v. Moreno.
From the 28 October 2019 signing date, there is a presumptive facially unreasonable delay if the Action is not docketed within 30 days of that date. Here, the record of trial was docketed 100 days after the convening authority signed on 5 February 2020. On appeal, AFCCA found there was a facially unreasonable delay but no due process violation. As articulated in Toohey, there is no due process violation where the appellant has not demonstrated prejudice from the delay, and the delay was “not so egregious as to adversely affect the public’s perception of fairness and integrity in the military justice system”. Next, pursuant to its authority under Art. 66(d), UCMJ, 10 U.S.C. § 866(d), AFCCA concluded that post-trial processing relief is not appropriate.
[i] DEA agents supported AFOSI agents during this investigation.
[ii] Appellant did not request the convening authority to defer reduction in rank, only forfeitures. Pursuant to United States v. Matias, the request to waive forfeitures requires no further discussion or relief. SeeUnited States v. Carter, No. ACM 39853 n.4; 25 M.J. 356, 361 (C.M.A. 1987).
[iii] Quiroz Factors: (1) whether each charge and specification is aimed at distinctly separate criminal acts; (2) whether the number of charges and specifications misrepresents or exaggerates the accused's criminality; (3) whether the number of charges and specifications unreasonably increases the accused's punitive exposure; and (4) whether there is any evidence of prosecutorial overreaching or abuse in the drafting of the charge. United States v. Quiroz, 55 M.J. 334, 336 (C.A.A.F. 2001).
[iv] United States v. Spann, No. 200300968, 2004 CCA LEXIS 261 (N.M. Ct. Crim. App. 29 Nov. 2004) (unpub. op).
[v] See United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013). The Court considered the following factors: (1) "Dramatic changes in the penalty landscape and exposure;" (2) "Whether an appellant chose sentencing by members or a military judge alone;" (3) "Whether the nature of the remaining offenses capture[s] the gravamen of criminal conduct included within the original offenses and . . . whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses;" and (4) "Whether the remaining offenses are of the type that judges of the courts of criminal appeals should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial."
[vi] SeeUnited States v. Cook, 48 M.J. 434, 438 (C.A.A.F. 1998).
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