United States v. Goings , 72 M.J. 202 ( 2013 )

UNITED STATES, Appellee
v.
Ivan D. GOINGS, Staff Sergeant
U.S. Army, Appellant
No. 11-0547
Crim. App. No. 20080602
United States Court of Appeals for the Armed Forces
Argued November 13, 2012
Decided May 23, 2013
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN, J., and EFFRON, S.J., joined. STUCKY, J., filed
a separate dissenting opinion.
Counsel
For Appellant: Captain Kristin B. McGrory (argued); Lieutenant
Colonel Jonathan F. Potter and Major Jacob D. Bashore (on
brief); Lieutenant Colonel Imogene M. Jamison and Lieutenant
Colonel Peter Kageleiry Jr.
For Appellee: Captain Edward J. Whitford (argued); Lieutenant
Colonel Amber J. Roach and Major Catherine L. Brantley (on
brief); Major LaJohnne A. White and Captain Bradley M. Endicott.
Military Judge: Gregg Marchessault
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Goings, 11-0547/AR
Judge RYAN delivered the opinion of the Court.
Contrary to his pleas, a military judge sitting as a
general court-martial convicted Appellant of one specification
of rape, in violation of Article 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920 (2006), and one specification of
committing an indecent act with another, in violation of Article
134, UCMJ, 10 U.S.C. § 934 (2006). The adjudged sentence
provided for a dishonorable discharge, confinement for five
years, forfeiture of all pay and allowances, and reduction to
grade E-1. The convening authority disapproved the adjudged
forfeitures but approved the remainder of the adjudged sentence,
and waived the forfeiture of automatic pay and allowances for
six months.
Before the United States Army Court of Criminal Appeals
(ACCA), Appellant argued for the first time that his conviction
for committing an indecent act with another under Article 134,
UCMJ, Specification 6 of Charge II (Specification 6), should be
set aside in light of the Supreme Court’s holding in Lawrence v.
Texas, 539 U.S. 558 (2003). 1 Appellant, however, fails to meet
1
We granted review of the following issues:
I. WHETHER LAWRENCE v. TEXAS EXTENDS A ZONE OF PRIVACY TO
THE INDECENT ACT OF WHICH APPELLANT WAS CONVICTED.
II. WHETHER SPECIFICATION 6 OF CHARGE II FAILS TO STATE AN
OFFENSE BECAUSE IT DOES NOT EXPRESSLY ALLEGE OR
NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134,
UCMJ.
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his burden of showing that the military judge erred, let alone
plainly and obviously erred, in allowing the conduct described
in Specification 6 to serve as the basis for his indecent act
conviction under Article 134, UCMJ.
Moreover, while the ACCA misapplied United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011), in its consideration of the
Government’s failure to allege the terminal element of Article
134, UCMJ, in the contested specification, review of the record
reveals that Appellant was not prejudiced by this error. See
United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).
Accordingly, the conviction and sentence are affirmed.
I. FACTS
On August 2, 2007, German police searched Appellant’s off-
post apartment pursuant to a search warrant to investigate
claims of sexual assault. During the search, the police seized,
among other items, a video camera and several 8-millimeter video
recordings. One of the recordings depicts Appellant and an
unidentified female engaged in consensual sexual activity,
including intercourse, in his off-post apartment. The recording
was made by an unidentified male who filmed the sexual activity
while in the presence of Appellant and the unidentified female.
While the recording further shows the unidentified male
United States v. Goings, 71 M.J. 334 (C.A.A.F. 2012) (order
granting review).
3
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physically participating in the sexual activity, this
participation did not form the basis of the specification at
issue. At trial, the Government conceded that the participants
were aware that they were being recorded and that the sexual
activity was consensual.
Based on this conduct, the Government charged Appellant
with, among other offenses, committing an indecent act with
another, in violation of Article 134, UCMJ. The specification
relating to this charge, Specification 6, reads:
In that SSG Ivan D. Goings . . . did . . . wrongfully
commit an indecent act with another male and a female
by allowing the other male to be present and video
record on a video cassette tape the said SSG Ivan D.
Goings engaging in sexual intercourse with the female.
Specification 6 did not allege the terminal element of
Article 134, UCMJ. However, the Government argued that the
evidence was prejudicial to good order and discipline in its
opening statement, and presented evidence, during its case-in-
chief, as to why the indecent act with another was both
prejudicial to good order and discipline and service
discrediting. Appellant, in turn, defended against
Specification 6 on the ground that neither clause 1 nor clause 2
of the terminal element had been met, during both his cross-
examination of Government witnesses and closing argument. At no
time during trial did Appellant raise the argument that he was
not guilty because his conduct was constitutionally protected.
4
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Instead, his defense was that his conduct was neither
prejudicial to good order and discipline nor service
discrediting.
II. ACCA DECISION
The ACCA summarily rejected Appellant’s Lawrence claim
without discussion and held that the court-martial’s findings
and sentence, as approved, were correct in law and fact. United
States v. Goings, No. ARMY 20080602 (A. Ct. Crim. App. May 5,
2011). On October 14, 2011, this Court vacated the ACCA’s
decision and ordered the case remanded to that court for
consideration in light of United States v. Fosler, 70 M.J. 225(C.A.A.F. 2011). United States v. Goings, 70 M.J. 376 (C.A.A.F.
2011) (order granting review and summarily vacating the lower
court’s decision). Upon reconsideration, the ACCA again held
that the findings and sentence, as approved, were correct in law
and fact. United States v. Goings, No. ARMY 20080602 (A. Ct.
Crim. App. Feb. 7, 2012). Specifically, the ACCA found that
Specification 6 “can be reasonably construed to imply” the
terminal element of that charge. Id. at 2 n.2.
III. DISCUSSION
A.
Appellant was convicted of indecent acts with another, in
violation of Article 134, UCMJ. This offense consists of three
elements: (1) “[t]hat the accused committed a certain wrongful
5
United States v. Goings, 11-0547/AR
act with a certain person; (2) [t]hat the act was indecent; and
(3) [t]hat . . . the conduct . . . was to the prejudice of good
order and discipline . . . or was of a nature to bring discredit
upon the armed forces.” Manual for Courts-Martial, United
States pt. IV, para. 90.b. (2005 ed.) (MCM). 2 Indecent is
defined as “that form of immorality relating to sexual impurity
which is not only grossly vulgar, obscene, and repugnant to
common propriety, but tends to excite lust and deprave the
morals with respect to sexual relations.” MCM pt. IV, para.
90.c. As further limited by this Court’s decisions in United
States v. Snyder, 1 C.M.A. 423, 4 C.M.R. 15 (1952), and United
States v. Berry, 6 C.M.A. 609, 20 C.M.R. 325 (1956), private
consensual sexual activity is not punishable as an indecent act
absent aggravating circumstances. Snyder, 1 C.M.A. at 427, 4
C.M.R. at 19; Berry, 6 C.M.A. at 614, 20 C.M.R. at 330. One
such aggravating circumstance is that the sexual activity is
“open and notorious,” which includes when the participants know
that someone else is present. United States v. Izquierdo, 51
2
The videotaping occurred “prior to October 1, 2007, the
effective date of the amendments to the UCMJ and [MCM] made by
the National Defense Authorization Act for Fiscal Year 2006,
Pub. L. No. 109–163, § 552, 119 Stat. 3136, 3256–63 (2006), so
[the offense was] properly charged under Article 134, UCMJ. See
MCM, Punitive Articles Applicable to Sexual Assault Offenses
Committed Prior to 1 October 2007 app. 27 at A27–2 (2008 ed.).”
United States v. Rose, 71 M.J. 138, 140 n.3 (C.A.A.F. 2012).
6
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M.J. 421, 422 (C.A.A.F. 1999); Berry, 6 C.M.A. at 614, 20 C.M.R.
at 330.
Appellant does not dispute that the offense of indecent
acts with another, as proscribed under Article 134, UCMJ, and as
limited by this Court’s precedent, is facially constitutional.
Instead, he appears to argue that the statute is
unconstitutional as applied to him, Brief for Appellant at 12-
18, United States v. Goings (C.A.A.F. July 20, 2012) (No. 11-
0547), despite failing to object at trial on this ground. 3 Since
the error Appellant now alleges is constitutional, and in light
of this Court’s (1) “presumption against the waiver of
constitutional rights” and (2) requirement that a waiver
“clearly establish[] . . . an intentional relinquishment of a
known right or privilege,” United States v. Sweeney, 70 M.J.
296, 303-04 (C.A.A.F. 2011) (quoting United States v. Harcrow,
66 M.J. 154, 157 (C.A.A.F. 2008)), we consider the alleged error
3
From start to finish, the contested issue in the case was
whether Appellant’s conduct met the terminal element of Article
134, UCMJ. Appellant argued that his conduct was insufficient
to meet the terminal element, in part, because, in his view, his
conduct would be constitutionally protected in a non-military
setting. The trier of fact disagreed, and the ACCA concluded
that the evidence was legally sufficient. Goings, No. ARMY
20080602, slip op. at 1. What amounts to an argument that the
Government has not put forth legally sufficient evidence to
support an Article 134, UCMJ, conviction is fundamentally
different from a constitutional argument that, in the military
context, Appellant’s conduct is protected.
7
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forfeited, and not waived. We therefore review for plain error.
Id. at 304. 4
B.
We review whether a statute is unconstitutional as applied
de novo. United States v. Ali, 71 M.J. 256, 265 (C.A.A.F.
2012). To determine if “a statute is ‘unconstitutional as
applied,’ we conduct a fact-specific inquiry.” Id. Upon plain
error review, to prove that Article 134, UCMJ -- a facially
constitutional criminal statute -- is unconstitutional as
applied to him, Appellant must point to particular facts in the
record that plainly demonstrate why his interests should
overcome Congress’ and the President’s determinations that his
conduct be proscribed. See United States v. Vazquez, 72 M.J.
13, 16-21 (C.A.A.F. 2013); Ali, 71 M.J. at 266. Appellant fails
to meet this burden.
There is no question that Appellant’s rights as a member of
the military are not coextensive with those enjoyed by
civilians. See Parker v. Levy, 417 U.S. 733, 758 (1974)
(upholding the constitutionality of Article 134, UCMJ, and
observing that “[t]he fundamental necessity for obedience, and
the consequent necessity for imposition of discipline, may
4
“Under plain error review, this Court will grant relief only
where (1) there was error, (2) the error was plain and obvious,
and (3) the error materially prejudiced a substantial right of
the accused.” Sweeney, 70 M.J. at 304.
8
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render permissible within the military that which would be
constitutionally impermissible outside it”). And no one asserts
that the interest recognized in Lawrence is somehow exempt from
adaptation to the military environment. See United States v.
Marcum, 60 M.J. 198, 207 (C.A.A.F. 2004) (in the context of an
as-applied challenge under Lawrence, requiring consideration of
whether there are “additional factors relevant solely in the
military environment that affect the nature and reach of the
Lawrence liberty interest”). Consonant with his authority to
act as commander-in-chief and his duty to “take care that the
laws be faithfully executed,” U.S. Const. art. II, §§ 2-3, the
President has listed indecent acts with another as a “way[] in
which Article 134, UCMJ, might be charged,” United States v.
Jones, 68 M.J. 465, 472 (2010). See also United States v.
Miller, 47 M.J. 352, 356 (C.A.A.F. 1997); United States v.
Gonzalez, 42 M.J. 469, 474 (C.A.A.F. 1995). The commission of
sexual acts in the presence of a third party has been held to be
sufficiently “open and notorious” to constitute an indecent act,
punishable under Article 134, UCMJ, see Izquierdo, 51 M.J. at
422-23 (C.A.A.F. 1999) (“[An] act is ‘open and
notorious’ . . . when the participants know that a third person
is present.” (citing Berry, 6 C.M.A. at 614, 20 C.M.R. at 330)),
and we do not doubt that permitting the filming of those same
acts is also sufficient. Cf. United States v. Cohen, 63 M.J.
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45, 53 (C.A.A.F. 2006) (holding that Article 31(b) rights
warnings were required when the appellant described his role in
photographing a sexual assault). 5 Congress’ and the President’s
determination to proscribe such acts that are “to the prejudice
of good order and discipline” or “of a nature to bring discredit
upon the armed forces,” Article 134, UCMJ; MCM, pt. IV, para.
90.b. (2005 ed.), no doubt furthers the military’s unique
interest in obedience and discipline, see Levy, 417 U.S. at 758,
which Marcum recognized as affecting the nature and reach of
Lawrence. See Marcum, 60 M.J. at 206-07.
Here, Appellant was convicted of “allowing [a third party]
to be present and video record on a video cassette tape
[Appellant] engaging in sexual intercourse with [a] female,” and
legally sufficient evidence was adduced at trial that this
5
Additionally, that Appellant’s conviction is supported by
legally sufficient evidence is particularly true in light of the
low evidentiary threshold that this Court has applied to Article
134, UCMJ’s terminal element. See United States v. Phillips, 70
M.J. 161, 163 (C.A.A.F. 2011) (“evidence that the public was
actually aware of the conduct is not necessarily required” to
support clause 2 of Article 134, UCMJ’s, terminal element);
United States v. Irvin, 60 M.J. 23, 26 (C.A.A.F. 2004) (finding
a sufficient factual basis to support clause 1 and clause 2 of
Article 134, UCMJ’s, terminal element despite no evidence that
any other servicemembers were aware of, or saw, the child
pornography). To the extent we should revisit the question
whether a more exacting standard of proof should be required to
support the terminal elements of Article 134, UCMJ, we leave
that issue for a case in which it is properly raised and
briefed. See, e.g., United States v. Wilcox, 66 M.J. 442, 448-
49 (C.A.A.F. 2008) (requiring a more exacting standard in the
context of the First Amendment).
10
United States v. Goings, 11-0547/AR
conduct was prejudicial to good order and discipline and service
discrediting. No one disagrees that wholly private and
consensual sexual activity, without more, falls within Lawrence.
But that does not answer the altogether different question
whether permitting a third party to observe and memorialize
one’s sexual activity on videotape is categorically protected as
“wholly private and consensual sexual activity” where the trier
of fact has deemed the conduct to be prejudicial to good order
and discipline in the armed forces and service discrediting. We
hold that, under the circumstances of this case, it is not.
In Lawrence, the focal point of the constitutional
protection involved an act of sexual intimacy between two
individuals in a wholly private setting without more. Lawrence,
539 U.S. at 562-63. Lawrence did not establish a presumptive
constitutional protection for all offenses arising in the
context of sexual activity. See Lawrence, 539 U.S. at 578(noting that “[t]he present case d[id] not involve
minors[,] . . . persons who might be injured or coerced or who
are situated in relationships where consent might not easily be
refused[,] . . . public conduct[,] or prostitution); Marcum, 60
M.J. at 206–07 (recognizing that consideration of military
interests affect the nature and reach of Lawrence); United
States v. Lebowitz, 676 F.3d 1000, 1012 n.5 (11th Cir. 2012)
(holding Lawrence “immaterial” to its analysis because “[e]ven
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if Lawrence protected the sexual conduct depicted on the video
tape, . . . the depictions . . . traveled across state lines by
means of computer” and became “publicly traded contraband”).
When the conduct being charged does not fall directly within the
focal point of Lawrence -- sexual conduct between two
individuals in a wholly private setting that was criminal for no
other reason than the act of the sexual conduct itself –- and
where, as here, the predicate sexual conduct is criminal because
of some additional factor (in this case, the violation of
clauses 1 and 2 of Article 134, UCMJ), the burden of
demonstrating that such conduct should nonetheless be
constitutionally protected rests with the defense at trial. See
Vazquez, 72 M.J. at 16-21; Ali, 71 M.J. at 266. Put another
way, to show that a facially constitutional statute is
unconstitutional as applied to a particular individual, the
individual must develop facts at trial that show why his
interest should overcome the determination of Congress and the
President that the conduct be proscribed. See Vazquez, 72 M.J.
at 16-21; Ali, 71 M.J. at 266. Here, the defense did not raise
such an issue at trial or develop such facts in a motion
proceeding. In that context, the military judge did not commit
error, let alone plain and obvious error, in failing to sua
sponte raise a Lawrence issue.
12
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C.
We now turn to the question whether Specification 6 fails
to state an offense because it does not allege the terminal
element of Article 134, UCMJ. As we held in Fosler, a contested
case involving an Article 134, UCMJ, offense, the terminal
element must be pleaded or fairly implied, and the allegation of
the act itself is insufficient to support a fair implication of
the terminal element. Fosler, 70 M.J. at 229-31. Yet the ACCA,
on remand for consideration of the issue in light of Fosler,
determined that the error did not prejudice Appellant because
“the charge and its specification can be reasonably construed to
imply [the terminal element].” Goings, No. ARMY 20080602, slip
op. at 2 n.2. After examining Specification 6, it is clear that
Fosler foreclosed the line of reasoning upon which the ACCA
based its determination. Article 134, UCMJ, has two elements:
(1) a predicate act or failure to act, and (2) a terminal
element. United States v. Medina, 66 M.J. 21, 25 (C.A.A.F.
2008). The terminal element of an Article 134, UCMJ, offense
may not be “fairly implied” from nothing more than the language
describing the alleged act or failure to act itself. 6 Fosler, 70
M.J. at 230-31.
6
Moreover, the inclusion of the word “wrongfully” in
Specification 6 “cannot of itself imply the terminal element.”
Fosler, 70 M.J. at 230.
13
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This, however, does not end the inquiry as Appellant,
unlike the accused in Fosler, failed to object to the
specification on this ground at trial. See Humphries, 71 M.J.
at 213. Because Appellant’s trial occurred before this Court’s
decision in Fosler, we deem his failure to object as forfeiting,
rather than waiving, the underlying right and apply plain error
analysis. Id. at 211, 213.
Here, it was plain and obvious error for the Government not
to allege the terminal element. Id. at 211, 214. “Having found
plain and obvious error that was forfeited rather than waived,
the remaining question is ‘whether there is a remedy for the
error,’ which ‘will depend on whether the error has prejudiced
the substantial rights of the accused.’” Id. at 215 (quoting
United States v. Ballan, 71 M.J. 28, 30 (C.A.A.F. 2012)). In
the context of a defective specification, the prejudice analysis
“demand[s] close review of the trial record.” Humphries, 71
M.J. at 215. “[W]e look to the record to determine whether
notice of the missing element is somewhere extant in the trial
record, or whether the element is ‘essentially uncontroverted.’”
Id. at 215-16 (quoting United States v. Cotton, 535 U.S. 625,
633 (2002), and Johnson v. United States, 520 U.S. 461, 470
(1997)).
While up to this point we have left Humphries’ fact-
intensive prejudice analysis to the Courts of Criminal Appeals
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(CCAs), and despite the fact that we would ordinarily return the
record of trial in this case to the Judge Advocate General of
the Army for remand to the ACCA for consideration in light of
Humphries, we undertake it here for two reasons. First, in
order to resolve Issue I, this Court had to conduct a fact-
intensive analysis of the record to determine whether the
military judge’s failure to raise a Lawrence issue was plain and
obvious error. Second, it appears that there is some
misperception that, under Humphries, a conclusion that the
government’s error in failing to allege the terminal element was
nonprejudicial may be based on the same flawed logic that we
rejected in Fosler and Humphries. See United States v. Allbery,
44 M.J. 226, 228 (C.A.A.F. 1996).
Finding sufficient notice of the terminal element -- and
thus no prejudice –- on such bases as: (1) witness testimony
describing the act or failure to act that meets Article 134,
UCMJ’s, first element; (2) the government’s identification of
its theory of criminality during its closing argument; (3)
evidence of defense counsel’s general awareness of the terminal
element; or (4) findings instructions that require the panel to
find the terminal element beyond a reasonable doubt in order to
convict, without more, is error under both Fosler and Humphries.
That: (1) the evidence was legally sufficient to prove the
terminal element; (2) defense counsel demonstrated a general
15
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knowledge of the law, and (3) the government’s theory of
criminal liability was introduced during closing or through
findings instructions do not answer the altogether different
question whether the record sufficiently demonstrates that an
accused was on notice as to which clause or clauses of the
terminal element he needed to defend against. Humphries, 71
M.J. at 216 n.8. It is this latter question that determines
whether an appellant was prejudiced.
In Humphries, we found prejudice where “[n]either the
specification nor the record provide[d] notice of which terminal
element or theory of criminality the Government pursued in
th[at] case.” Id. at 216. 7 Here, however, we find no prejudice
because the record clearly demonstrates that Appellant (1) was
put on notice that the Government intended to prove that his
conduct was both prejudicial to good order and discipline and
service discrediting and (2) defended himself against those
theories of guilt.
In its opening statement, the Government stated that it
would call First Sergeant (Sgt) Perkins, who would
7
We noted that the government failed to (1) mention in its
opening statement “how [a]ppellee’s conduct satisfied either
clause 1 or 2 of the terminal element,” (2) “present any
specific evidence or call a single witness to testify as to why
[a]ppellee’s conduct satisfied” the terminal element, or (3)
make any “attempt to tie any of the evidence or witnesses that
it did call to the Article 134, UCMJ,” charge. Id.
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“testify . . . that these videos and these actions are
prejudicial to good order and discipline.” During its case-in-
chief, the Government presented the testimony of First Sgt
Perkins, who testified that Appellant’s conduct portrayed in the
videotape was prejudicial to good order and discipline. On
cross-examination, defense counsel challenged this testimony.
On redirect examination, First Sgt Perkins then testified as to
why the conduct was service discrediting. Again, this testimony
was challenged by defense counsel on recross-examination.
Next, the Government presented the testimony of Sergeant
First Class (SFC) Olivarez, who testified that Appellant’s
conduct was both prejudicial to good order and discipline and
service discrediting. Defense counsel again challenged this
testimony on cross-examination.
During closing argument, Appellant summed up his vigorous
defense against the terminal element of Article 134, UCMJ,
arguing that the evidence was legally insufficient to prove the
charged offense because there was no evidence that the
unidentified male and female in the recording knew that
Appellant was a servicemember, and, therefore, the conduct could
not (1) “bring[] a bad light on the military,” or (2) “be bad
[for] the unit” or undermine Appellant. Defense counsel argued
that the Government failed in its attempt to prove the terminal
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element through the testimony of First Sgt Perkins and SFC
Olivarez.
The evidence, as contained in the trial record,
demonstrates that Appellant was not only provided “notice of
which terminal element or theory of criminality the Government
pursued in this case,” Humphries, 71 M.J. at 216, but vigorously
defended against it.
IV. DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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STUCKY, Judge (dissenting):
We granted review in this case to determine whether
Lawrence v. Texas, 539 U.S. 558 (2003), and United States v.
Marcum, 60 M.J. 198 (C.A.A.F. 2004), extend a zone of privacy to
the indecent act of which Appellant was convicted, and whether
the same indecent act specification fails to state an offense
because it does not expressly allege or necessarily imply the
terminal element of Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934 (2006). In my opinion, the
record shows that Appellant’s conduct falls within Lawrence’s
privacy interest, and that none of the factors listed in
Lawrence or the military-specific factors suggested in Marcum
disturb this privacy interest. I believe Appellant has carried
his burden to establish plain error, and would hold that the
conduct forming the basis of his conviction is constitutionally
protected. Therefore, I need not reach the second issue. 1
I.
Appellant’s off-post home in Germany was searched pursuant
to a German search warrant issued on unrelated charges. German
police seized a camcorder and several video cassettes containing
depictions of adults engaged in sexual activity from Appellant’s
1
If it were otherwise, I would agree with the majority that
Appellant was not prejudiced by the failure to allege the
terminal element.
United States v. Goings, No. 11-0547/AR
home. Appellant was not charged for many of the videos
depicting sexual conduct between Appellant and various females. 2
Based upon two of the videos, Appellant was charged with
four specifications (Charge II, Specifications 4–7) of indecent
acts in violation of Article 134, UCMJ. Specifications 4–6
involved a video wherein Appellant and an unidentified man took
turns filming each other engaging in consensual sexual activity
with an unidentified female. 3 Specification 7 involved a
separate video wherein Appellant and a female German civilian
2
The Government attempted to introduce some of the uncharged
videos as Rule for Courts-Martial (R.C.M.) 404(b) motive or
intent evidence of Appellant’s desire to film “lustful acts” to
support Specifications 4–6. The military judge did not admit
the videos as R.C.M. 404(b) evidence.
3
SPECIFICATION 4: In that [Appellant], did, at or near
Leimen, Germany, between on or about 5 February 2003 and 1
February 2006, wrongfully commit an indecent act with
another male and a female by being present, observing and
video recording on a video cassette tape the other male
and female engaging in sexual intercourse.
SPECIFICATION 5: In that [Appellant], did, at or near
Leimen, Germany, between on or about 5 February 2003 and 1
February 2006, wrongfully commit an indecent act with
another male and a female by being present, observing and
video recording on a video cassette tape the other male
and female engaging in sexual intercourse.
SPECIFICATION 6: In that [Appellant], did, at or near
Leimen, Germany, between on or about 5 February 2003 and 1
February 2006, wrongfully commit an indecent act with
another male and a female by allowing the other male to be
present and video record on a video cassette tape the said
[Appellant] engaging in sexual intercourse with the
female.
2
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engaged in sexual conduct. 4 Before trial, upon defense counsel’s
motion, the military judge severed and dismissed Specification
7. The military judge acquitted Appellant of Specifications 4
and 5, but convicted him of the specification at issue in this
appeal -- Specification 6.
II.
Although Appellant’s main theory at trial was that his
conduct was neither prejudicial to good order and discipline nor
service discrediting, he did refer to his conduct as
“constitutionally protected activity” more than once. 5 However,
I agree with the majority that plain error review is appropriate
in this case as Appellant did not make a specific objection on
Lawrence or Marcum grounds such that he clearly preserved the
issue. I disagree with the majority’s interpretation of
Lawrence, and the conclusion that Appellant has not carried his
burden to establish plain error. Appellant has pointed to
4
SPECIFICATION 7: In that [Appellant], did, at or near
Heidelberg, Germany, on or about 1 July 2007, wrongfully commit
an indecent act with P.B. by video recording on a video cassette
tape the naked genital area of P.B.
5
At trial, Appellant referenced the protected status of his
conduct in the civilian world, stating that “sexual intercourse
in the presence of another person is not a crime outside of the
military.” Defense counsel also asked a witness “how is
allowing yourself to be videotaped by a third party while you
are having a [sic] constitutionally protected activity”
prejudicial to good order and discipline?
3
United States v. Goings, No. 11-0547/AR
particular facts in the record indicating that his conduct is
constitutionally protected under Lawrence and Marcum.
A.
In Lawrence, the Supreme Court addressed the validity of a
Texas anti-sodomy statute that made it a crime for “two persons
of the same sex to engage in certain intimate sexual conduct.”
539 U.S. at 562. Citing earlier privacy precedents like
Griswold v. Connecticut, 381 U.S. 479 (1965); Carey v.
Population Servs. Int’l, 431 U.S. 678 (1977); and Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), Justice
Kennedy, speaking for the Court, reaffirmed the idea that there
is a liberty interest protected by the Due Process Clause of the
Fourteenth Amendment. Lawrence, 539 U.S. at 564–78. The Court
held that this liberty interest did, in fact, protect privacy
rights involving “the most private human conduct, sexual
behavior, and in the most private of places, the home.” Id. at
567. The Court suggested some limits on this liberty interest,
noting that Lawrence did not involve minors, persons who might
be injured or coerced, persons situated in a relationship where
consent might not easily be refused, public conduct, or
prostitution. Id. at 578.
Recognizing that constitutional rights may apply
differently to members of the armed forces, Parker v. Levy, 417
U.S. 733, 759 (1974); see also United States v. Barberi, 71 M.J.
4
United States v. Goings, No. 11-0547/AR
127, 131 (C.A.A.F. 2012), this Court modified the constitutional
protections outlined in Lawrence. Marcum, 60 M.J. at 208. In
Marcum, the appellant was convicted of non-forcible sodomy with
a subordinate. 60 M.J. at 200. This Court held that despite
Lawrence, Article 125, UCMJ, was constitutional as applied to
Marcum. Id. at 205. To reach that conclusion, this Court
applied a three-part test for addressing the application of
Lawrence in the military context:
1. Was the conduct of a nature to bring it within the
liberty interest identified by the Supreme Court?
2. Did the conduct encompass any behavior or factors
identified by the Supreme Court as an exception to
the liberty interest?
3. Are there additional military factors that affect
the nature and reach of the Lawrence liberty
interest?
Id. at 206–07. This Court found that Marcum’s conduct was of a
nature to bring it within the Lawrence liberty interest because
it involved private, consensual sexual activity between adults,
but held that an applicable Air Force instruction and the nature
of superior-subordinate relationships took his conduct outside
of the Lawrence liberty interest. Id. at 207–08. Because a
subordinate within the appellant’s chain of command is a person
“‘who might be coerced’” or is “‘situated in [a] relationship[]
where consent might not easily be refused,’” this Court decided
the case on the second part of the test and did not discuss what
5
United States v. Goings, No. 11-0547/AR
the additional military factors contemplated in part three might
entail. Id. at 208 (alteration in original) (quoting Lawrence,
539 U.S. at 578).
B.
As a threshold matter, I agree that Appellant’s rights as a
military member are not coextensive with those enjoyed by
civilians. Parker, 417 U.S. at 758–59; Marcum, 60 M.J. at 205.
Furthermore, I agree that Lawrence does not protect all sexual
conduct, but the majority mischaracterizes the reach of
Lawrence. Contrary to what the majority suggests, Lawrence does
not turn on interpretations of “indecency,” the type of sexual
activity adults decide to engage in, or the presence of only two
consenting adults. United States v. Goings, ___ M.J. ___ (9–12)
(C.A.A.F. 2013).
Rather, as evidenced throughout the opinion, Lawrence
turned on the freedom of adults to engage in “private conduct in
the exercise of their liberty under the Due Process Clause,”
“the right to make certain decisions regarding sexual
conduct . . . beyond the marital relationship,” and the
“emerging awareness that liberty gives substantial protection to
adult persons in deciding how to conduct their private lives in
matters pertaining to sex.” Lawrence, 539 U.S. at 564, 565,
572.
6
United States v. Goings, No. 11-0547/AR
The majority relies on pre-Lawrence and Marcum
determinations of what constitutes “indecent” conduct and what
can be considered prejudicial to good order and discipline or
service discrediting conduct to: (1) find that the military
judge correctly found that the facts were legally sufficient to
uphold a conviction for indecent acts; and (2) hold that “the
military judge did not commit error, let alone plain and obvious
error, in failing to sua sponte raise a Lawrence issue.”
Goings, ___ M.J. at ___ (11–12). However, whether the facts are
legally sufficient to sustain a conviction, whether the military
judge failed to sua sponte raise a Lawrence issue, or whether
Congress and the President may proscribe certain types of
indecent conduct are not the issues before this Court. We are
tasked with determining, de novo, whether Appellant has carried
his burden to establish that Lawrence extends a zone of
protection to his conduct -- regardless of whether the Manual
for Courts-Martial, United States (MCM) considers it indecent.
Therefore, it is necessary to consider what is required to
establish plain error, and the effect of Lawrence on what may
have previously been considered constitutional legislation and
judicial precedents.
III.
Under a plain error analysis, this Court has held that the
“Appellant has the burden of demonstrating that: (1) there was
7
United States v. Goings, No. 11-0547/AR
error; (2) the error was plain or obvious; and (3) the error
materially prejudiced a substantial right of the accused.”
United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012)
(citation and internal quotation marks omitted). 6 Under Lawrence
and Marcum, which were both decided before Appellant’s court-
martial, to establish error all Appellant must show is that his
conduct was: (1) private consensual sexual activity between
adults, (2) that does not fall outside of the Lawrence liberty
interest, and (3) is not affected by additional military
factors. Lawrence, 539 U.S. at 578; Marcum, 60 M.J. at 206–07.
If Appellant establishes that his conduct is protected, that
nothing takes it outside of the liberty interest, and that no
unique military factors affect the liberty interest, then
Appellant has established that he was convicted of
constitutionally protected conduct which is plain and obvious
6
The Supreme Court’s plain error doctrine contains a fourth
prong -- “if the above three prongs are satisfied, the court of
appeals has the discretion to remedy the error -- discretion
which ought to be exercised only if the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Puckett v. United States, 556 U.S. 129,
135 (2009) (alteration in original) (citation and internal
quotation marks omitted). I have long maintained that this
Court should apply the fourth prong in line with the Supreme
Court’s plain error analysis. See United States v. Humphries,
71 M.J. 209, 221 (C.A.A.F. 2012) (Stucky, J., dissenting);
United States v. Tunstall, ___ M.J. ___ (2) (C.A.A.F. 2013)
(Stucky, J., concurring in part and in the result). However,
applying the fourth prong to this case would not change the
outcome as a conviction for constitutionally protected conduct
is both prejudicial and clearly affects the fairness and
integrity of judicial proceedings.
8
United States v. Goings, No. 11-0547/AR
error that materially prejudices his substantial rights.
Article 59(a), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 859(a) (2006); see also United States v. Knowles, 29
F.3d 947, 951 (5th Cir. 1994) (“basing a conviction on an
unconstitutional statute is both ‘plain’ and ‘error’”).
A.
The video at issue depicts private consensual sexual
activity between adults. The Government did not allege that the
individuals in the video were minors, and it is apparent from
the video that they were not. The Government also conceded that
there was no evidence of coercion or lack of consent, and that
the video shows that the participants consented to the activity.
The acts were also “private” under the Supreme Court’s
conception of privacy under the Fourteenth Amendment. 7 Lawrence
contemplates that the term “private” encompasses: (1) the
location of the acts; and (2) the personal decisions that each
consenting adult makes regarding his own sexual conduct. 8
7
The Fourteenth Amendment’s zone of “privacy” is the basis for
the liberty interest and is distinct from “public conduct” that
falls outside of the Lawrence liberty interest. Lawrence, 539
U.S. at 578. For example, Fourteenth Amendment “privacy”
protects an individual’s right to engage in consensual sexual
activity in his home, but, under Lawrence, the same activity is
not protected in a public park because it would be “public
conduct.” Whether Appellant’s conduct can be considered “public
conduct” is discussed below.
8
This conception is echoed in other Supreme Court privacy
precedent. See, e.g., Griswold, 381 U.S. at 484–85 (discussing
9
United States v. Goings, No. 11-0547/AR
Lawrence, 539 U.S. at 567 (“the most private human conduct,
sexual behavior . . . in the most private of places, the
home. . . . adults may choose to enter upon this relationship in
the confines of their homes and their own private lives”). The
record establishes that the video was filmed consensually, by
adults, in a private place -- Appellant’s home. I would hold
that Appellant’s acts are of a nature to bring them under the
Lawrence liberty interest.
B.
The next question is whether Appellant’s conduct somehow
falls out of the liberty interest. Lawrence, 539 U.S. at 578.
The record establishes this case does not involve any of the
conditions expressly listed in Lawrence that the Supreme Court
suggested would take Appellant’s conduct out of the liberty
interest. Appellant’s conduct did not involve injury to a
person, abuse of an institution the law protects, minors,
injured or coerced persons, persons in a situation where consent
might not be easily refused, or prostitution. 9 Id. at 567, 578.
the application of various zones of privacy to the home); Carey,
431 U.S. at 684 (“[O]ne aspect of the ‘liberty’ protected by the
Due Process Clause of the Fourteenth Amendment is ‘a right of
personal privacy, or a guarantee of certain areas or zones of
privacy.’ This right of personal privacy includes ‘the interest
in independence in making certain kinds of important
decisions.’”) (citations omitted).
9
“Public conduct” is also expressly listed as a factor that may
remove conduct from the liberty interest. Lawrence, 539 U.S. at
10
United States v. Goings, No. 11-0547/AR
However, the majority holds that “permitting a third-party to
observe and memorialize one’s sexual activity on videotape” is
outside of the Lawrence liberty interest -- apparently because
it was not “wholly private,” 10 it was “open and notorious” and
therefore indecent, because “the trier of fact has deemed the
conduct to be prejudicial to good order and discipline in the
armed forces and service discrediting,” or some combination of
the three. Goings, ___ M.J. at ___ (9–12).
The problem with this holding is that a military judge’s
determination that Appellant’s conduct is legally sufficient to
sustain a conviction for indecent acts under Article 134, UCMJ,
cannot be used to determine whether Appellant’s conduct is
constitutionally protected, given the differing natures of the
two inquiries. 11 Compare Jackson v. Virginia, 433 U.S. 308, 319
(1979) (“the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
578. Whether Appellant’s conduct was “public” is discussed
below.
10
The majority suggests that Appellant’s conduct must be wholly
private, Goings, ___ M.J. at ___ (11), but it is unclear whether
this is something beyond Lawrence’s conception of privacy as
neither Lawrence nor Marcum contains that phrase.
11
While legal sufficiency is not an appropriate metric to
determine constitutionality, I recognize that the reverse is not
necessarily true. In other words, the constitutionally
protected status of conduct may affect legal sufficiency, but
not vice versa. See United States v. Wilcox, 66 M.J. 442(C.A.A.F. 2008).
11
United States v. Goings, No. 11-0547/AR
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt”), with Lawrence, 539
U.S. at 563–64 (“The question before the Court is the validity
of a Texas statute . . . . We conclude the case should be
resolved by determining whether the petitioners were free as
adults to engage in the private conduct in the exercise of their
liberty under the Due Process Clause of the Fourteenth
Amendment . . . .”). This is especially true where the law has
recently changed and we are evaluating the constitutionality of
an as applied challenge to a statute as a matter of first
impression. 12 In this case, it does not matter that Congress,
the President, and military courts have previously indicated
that conduct like Appellant’s was legally sufficient to sustain
a conviction; what matters is whether Appellant has established
that his conduct is constitutionally protected under the current
state of the law. He has.
Appellant was convicted of an indecent act which requires:
(1) that the accused committed a wrongful act; (2) that was
indecent; and (3) under the circumstances was prejudicial to
good order and discipline or service discrediting. MCM pt. IV,
12
Indeed, the majority recognizes this point early in the
opinion. Goings, ___ M.J. at ___ (7 n.3) (“What amounts to an
argument that the Government has not put forth legally
sufficient evidence to support an Article 134, UCMJ, conviction
is fundamentally different from a constitutional argument that,
in the military context, Appellant’s conduct is protected.”).
12
United States v. Goings, No. 11-0547/AR
para. 90.b. (2005 ed.). “Indecent” is defined as “that form of
immorality relating to sexual impurity which is not only grossly
vulgar, obscene, and repugnant to common propriety, but tends to
excite lust and deprave the morals with respect to sexual
relations.” Id. at para. 90.c.
Before Lawrence, this Court’s predecessor held that “open
and notorious” fornication is indecent. See United States v.
Berry, 6 C.M.A. 609, 614, 20 C.M.R. 325, 330 (1956) (finding
indecency where the accused and a fellow servicemember
simultaneously had sex with different women in the same hotel
room and switched women the next morning). Since Berry, this
Court has applied the “open and notorious” standard to find
violations of indecent acts under Article 134. See, e.g.,
United States v. Izquierdo, 51 M.J. 421, 423 (C.A.A.F. 1999)
(finding indecency where the accused had sexual intercourse in
his barracks room where his two roommates were sleeping). The
majority relies upon these cases to argue that Appellant’s
conduct is “open and notorious” and therefore “indecent” and
prejudicial to good order and discipline or service
discrediting. Goings, ___ at ___ (6–9). It ignores any effect
that Lawrence may have had on Berry’s “open and notorious”
standard for indecency, and seems to hold that either the
presence of a third person during sexual activity, or the act of
videotaping sexual activity, even for private use, equals
13
United States v. Goings, No. 11-0547/AR
“public conduct” under Lawrence, or provides a separate basis to
take Appellant’s conduct outside of Lawrence.
I do not believe that Berry remains good law after
Lawrence, at least to the extent that it categorically forbids
“open and notorious” private, consensual, sexual conduct without
any connection to the military other than the accused being a
member of the military. 13 I am also convinced that whatever
“public conduct” means under Lawrence, it does not include
adults consensually engaging in sexual activity inside a home.
Furthermore, recognizing that the list of unprotected conduct in
Lawrence is non-exclusive, I can find no support for the
majority’s suggestion that either the involvement of a third
person, privately videotaping consensual sexual activity, or the
combination of the two brings Appellant outside of the liberty
interest. 14
13
Even if part of Berry somehow survives Lawrence, it is not
dispositive in this case, as Berry and its progeny are
distinguishable. In those cases, the acts in question were all
somehow connected to other military personnel, military duties,
or military locations.
14
The only cases I can find which address Lawrence in the
context of group sexual encounters or videos involve minors and
are therefore already constitutionally unprotected. See, e.g.,
People v. Allen, No. A106272, 2005 Cal. App. Unpub. LEXIS 2135,
2005 WL 552470 (Cal. App. 1st Dist. Mar. 9, 2005); United States
v. Machado, No. ACM 35908, 2006 CCA LEXIS 132, 2006 WL 1512106(A.F. Ct. Crim. App. May 31, 2006). It does not appear that
civilian jurisdictions have seen fit to charge or convict adults
of such private, consensual conduct after Lawrence. Indeed, the
only other cases the majority cites to show that Lawrence does
14
United States v. Goings, No. 11-0547/AR
Lawrence discusses sexual activity between two persons but
does not limit the liberty interest to such activity. 15 Rather,
it describes the liberty interest as a personal decision that
consenting adults may make. 539 U.S. at 564, 567, 570, 572. It
is not appropriate or feasible for this or any court to
determine whether to countenance certain types of consensual
relationships or conduct, absent harm to persons or to an
institution the law protects, or without a clear connection to
the military as discussed below. Indeed, Lawrence expressly
counsels against such determinations. Id. at 567 (“[The liberty
interest], as a general rule, should counsel against attempts by
the State, or a court, to define the meaning of the relationship
or to set its boundaries absent injury to a person or abuse of
an institution the law protects.”).
Similarly, nothing in Lawrence indicates that private
videotaping of sexual activity is unprotected. This is
not protect all sexual activity involve child pornography or
nonconsensual photography of sexual activities. Goings, ___
M.J. at ___ (9–10, 11) (citing United States v. Lebowitz, 676
F.3d 1000, 1012 n.5 (11th Cir. 2012); United States v. Cohen, 63
M.J. 45 (C.A.A.F. 2006)). I doubt that the dearth of such cases
indicates that no consenting adults are engaging in such
activities.
15
If Lawrence only intended to protect the right of two
homosexuals in a defined personal relationship to engage in
certain sexual conduct it could have been decided on equal
protection grounds -- something the Court expressly refused to
do. 539 U.S. at 574–75.
15
United States v. Goings, No. 11-0547/AR
especially true where the videotapes were filmed in a home for
private use only. 16 There is nothing in the record to indicate
that the video was intended to be anything but for private use,
or that Appellant had a commercial intent in filming the video.
The record establishes that the video was created years before
it was found in Appellant’s home, and that Appellant neither
distributed the video nor even converted it to a medium which
would make distribution feasible. At trial, defense counsel
referred to it as a private video, the Government did not
contest defense counsel’s characterization of the video as
private, and members of Appellant’s unit testified that nobody
had seen it or knew about it. Furthermore, the Government
introduced no evidence of commercial intent or distribution, and
even admitted in closing argument that there was no evidence
that Appellant had shown anybody the videos.
16
I agree with the majority that in some cases videotaping
sexual activity may have bearing on whether the conduct is
“public” or nonconsensual such that conduct may not be protected
by Lawrence. But such a factor is not relevant where, as here,
it is clear that all parties consented to the videotaping, it
was done in a private location, and there is no evidence the
tapes were distributed. Nonconsensual distribution after a
video was made consensually is a separate matter. To this end,
nearly every jurisdiction, including the military, has made
nonconsensual distribution a separate offense. See Article
120c(a), UCMJ, 10 U.S.C. § 920c(a) (2012).
16
United States v. Goings, No. 11-0547/AR
Additionally, there is no law indicating that recording
sexual acts is a punishable offense under Article 134, UCMJ. 17
As noted above, aside from limited exceptions, it is not the
province of this Court to determine what types of private sexual
activities are appropriate. See Lawrence, 539 U.S. at 571 (“Our
obligation is to define the liberty of all, not to mandate our
own moral code.”) (citations and internal quotation marks
omitted). Therefore, I would find that the record establishes
that nothing takes the sexual activity outside of Lawrence in
this case.
C.
Finding that Appellant’s actions are of a nature to bring
them within Lawrence, and that nothing exists that takes them
outside of that liberty interest, the next inquiry is whether
17
This is supported by the fact Appellant was not charged for a
number of videos found in his house depicting sexual conduct,
and the fact the military judge saw fit to acquit him of two
specifications involving videotaping of sexual conduct.
Furthermore, the 2008 MCM expanded the definition of indecent
conduct to include observing or making sexually related images
or videos without the other person’s consent and contrary to
their reasonable expectation of privacy, but did not criminalize
consensual recording. See Article 120(t)(12), UCMJ, 10 U.S.C. §
920(t)(12) (repealed 2011) (emphasis added). Similarly, the
2012 MCM did not criminalize consensual recording. Article
120c(a), UCMJ, 10 U.S.C. § 920c(a) (2012). There is military
case law suggesting that photographing or filming sexual acts is
punishable under Article 134, UCMJ. See, e.g., Cohen, 63 M.J.
at 53. However, all of the cases involve lack of consent,
surreptitious recording, or underage participants and are thus
clearly distinguishable from this case.
17
United States v. Goings, No. 11-0547/AR
the circumstances of this case trigger the military-specific
factors envisioned by Marcum. 18
The record establishes that there is no evidence that the
unidentified participants were in the military, connected to the
military, knew Appellant was in the military, or that anybody in
the military knew about the video. Defense counsel elicited
testimony from a member of Appellant’s unit that there was no
indication that another military member was involved in the
video, and that no military members knew about the video.
Additionally, defense counsel submitted that the other male in
the video was not in the service based upon his appearance, and
pointed out that the Government had not presented any evidence
indicating that the unidentified participants were in the
military, or knew that the accused was in the military. The
Government did not respond or attempt to introduce any such
evidence beyond suggesting that the video was connected to the
military because Appellant is in the military. Appellant’s
status as a military member alone is insufficient to fulfill the
third prong of Marcum and foreclose constitutional protection.
18
The third prong of Marcum asks if there are additional
military factors that affect the nature and reach of the
Lawrence liberty interest. 60 M.J. at 207. This Court has not
squarely addressed what type of military factors or connections
would be sufficient to take conduct outside of the liberty
interest, or whether these factors encompass anything beyond
conduct or situations that are already covered by first and
second prongs of Lawrence.
18
United States v. Goings, No. 11-0547/AR
Otherwise, Lawrence would be a dead letter as regards the
military.
The majority suggests that “Congress’ and the President’s
determination to proscribe such acts that are ‘to the prejudice
of good order and discipline’ or ‘of a nature to bring discredit
upon the armed forces,’ . . . no doubt furthers the military’s
unique interest in obedience and discipline . . . .” Goings,
___ M.J. at ___ (10) (citations omitted). I agree that if the
third prong of Marcum means anything beyond the second prong, it
is something akin to the terminal elements of Article 134, UCMJ
-- i.e., the legitimate interest in protecting the command and
discipline capabilities of the military and protecting the
reputation of the military. However, where the record
establishes no military connection at all, much less a
connection to command or disciplinary function, a
servicemember’s constitutional rights should not be determined
based on attenuated reputational concerns. Our First Amendment
jurisprudence supports this holding:
Article 134, UCMJ, does not make every “irregular or
improper act” a court-martial offense and does not
reach conduct that is only indirectly or remotely
prejudicial to good order and discipline. MCM pt. IV,
para. 60.c.(2)(a); see also William Winthrop, Military
Law and Precedents 723–24 (2d ed. 1920 reprint)
(commenting on Article 62 of the American Articles of
War, the predecessor to Article 134, UCMJ, and stating
that to be punishable, acts prejudicial to good order
and discipline “must have been committed under such
circumstances as to have directly offended against the
19
United States v. Goings, No. 11-0547/AR
government and discipline of the military state”). If
it were otherwise, the forces of narrowing
interpretation that saved Article 134, UCMJ, from
constitutional challenge in Parker v. Levy would fail.
Wilcox, 66 M.J. at 447. The Fourteenth Amendment privacy
interest here is directly analogous to the First Amendment free
speech interests in Wilcox and this Court should require a
similar connection to the military to trigger the third prong of
Marcum -- a direct and palpable connection between the conduct
and the military mission or military environment. 19 Id. at 448.
Appellant has established there was no direct and palpable
connection between his conduct and the military mission or
military environment. Therefore there is no “additional
factor[] relevant solely in the military environment that
affect[s] the nature and reach of the Lawrence liberty
interest.” Marcum, 60 M.J. at 206. Appellant’s conduct is
constitutionally protected. 20
19
Wilcox analyzed the legal sufficiency of an Article 134, UCMJ,
conviction for service discrediting speech; whereas this case is
addressing the constitutionality of a statute as applied. 66
M.J. at 448. As noted above, these are two separate inquiries.
However, it does not seem logical to require a more exacting
standard -- direct and palpable connection to the military -- in
the context of legal sufficiency, which is a very low threshold
for the Government to meet, but not require the same standard in
the context of determining constitutional rights. See United
States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006) (recognizing the
low bar to establish legal sufficiency).
20
This does not conflict with our holding in United States v.
Phillips, 70 M.J. 161, 163 (C.A.A.F. 2011). Phillips analyzed
what is legally sufficient to establish the terminal element of
20
United States v. Goings, No. 11-0547/AR
IV.
The record establishes that Appellant’s conduct was private
consensual activity between adults, that did not fall outside of
the Lawrence liberty interest, and was not affected by
additional military factors. Therefore, Appellant has
established he was convicted of constitutionally protected
conduct -- a plain and obvious error which materially prejudices
his substantial rights. I cannot think of a more compelling
demonstration that Appellant’s interests “overcome Congress’ and
the President’s determinations that his conduct be proscribed.”
Goings, ___ M.J. at ___ (8); see also United States v. Stephens,
67 M.J. 233, 235 (C.A.A.F. 2009) (“Of course, a rule or other
provision of the Manual for Courts-Martial cannot sanction a
violation of Appellant’s constitutional rights.”); United States
v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992) (recognizing that the
military, like the federal and state systems, has hierarchical
sources of rights, and that the highest source is the
Constitution of the United States). I would reverse Appellant’s
conviction as to the indecent acts charge.
Article 134, UCMJ, in a child pornography prosecution. This is
not a legal sufficiency case, it is a case analyzing the
constitutionality of a statute, and child pornography stands
upon a different constitutional basis. In any event, Phillips
recognized that constitutionally protected conduct may be
different even in the context of analyzing legal sufficiency.
Id. at 166.
21