United States v. Whitaker

UNITED STATES, Appellant
v.
Justin R. WHITAKER, Machinery Technician Third Class
U.S. Coast Guard, Appellee
No. 13-5004
Crim. App. No. 1366
United States Court of Appeals for the Armed Forces
Decided June 18, 2013
PER CURIAM
Counsel
For Appellant: Lieutenant Commander Vasilios Tasikas (on
brief).
For Appellee: Lieutenant Cara J. Condit and Lieutenant Jonathan
C. Perry (on brief).
Military Judge: Michael E. Tousley
This opinion is subject to revision before final publication.
United States v. Whitaker, No. 13-5004
PER CURIAM:
Consistent with his pleas, a military judge sitting as a
general court-martial convicted Appellee of sodomy, assault
consummated by a battery (three specifications), and providing
alcohol to a minor, in violation of Articles 125, 128, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 928,
934 (2006), respectively. The approved sentence consisted of
confinement for fifteen months, reduction to E-1, forfeiture of
all pay and allowances, and a dishonorable discharge.
At trial, Appellee stipulated that he committed oral sodomy
upon a sleeping shipmate by inserting his penis between her lips
and that he knew she “was asleep and an unwilling participant.”
On direct review, the United States Coast Guard Court of
Criminal Appeals (CGCCA) focused on the absence of the type of
guilty plea colloquy discussed in United States v. Hartman, 69
M.J. 467 (C.A.A.F. 2011) (holding the appellant’s guilty plea
improvident where the military judge failed to elicit the
appellant’s personal understanding and acknowledgment that his
engaging in sexual activity with another consenting adult was
subject to criminal sanction under the circumstances). United
States v. Whitaker, No. 1366, slip op. at 3 (C.G. Ct. Crim. App.
Dec. 12, 2012). The CGCCA concluded that the military judge’s
failure to explain to Appellee either that certain sexual
activity is constitutionally protected under Lawrence v. Texas,
2
United States v. Whitaker, No. 13-5004
539 U.S. 558 (2003), or why an act of sodomy committed upon a
sleeping victim fell outside the bounds of Lawrence’s protected
liberty interest, rendered Appellee’s plea improvident, and it
set aside the finding of guilty to sodomy and dismissed that
charge and specification. Whitaker, No. 1366, slip op. at 4.
The Judge Advocate General of the Coast Guard certified the
following question:
WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS
ERRED BY APPLYING THE PROVIDENCY REQUIREMENTS OF
HARTMAN IN A CASE WHERE THE FACTS ELICITED DURING THE
PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY
FELL OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED
BY LAWRENCE v. TEXAS BECAUSE IT INVOLVED A SLEEPING
VICTIM.
“In determining whether a guilty plea is provident, the
military judge may consider the facts contained in the
stipulation [of fact] along with the inquiry of appellant on the
record.” United States v. Jones, 69 M.J. 294, 299 (C.A.A.F.
2011) (internal quotation marks and citation omitted); see also
United States v. Sweet, 42 M.J. 183, 185 (C.A.A.F. 1995).
Here, Appellee admitted in the stipulation of fact to an
act of sodomy occurring without consent, since a sleeping victim
cannot consent. United States v. Palmer, 33 M.J. 7, 9 (C.M.A.
1991); see also Article 120(t)(14), UCMJ, 10 U.S.C. § 920(t)(14)
(2006). Nonconsensual sexual activity is simply not protected
conduct under Lawrence, 539 U.S. at 578 (emphasizing that the
sexual activity at issue involved two adults and occurred “with
3
United States v. Whitaker, No. 13-5004
full and mutual consent” from one another), and an act of sodomy
with a sleeping victim does not implicate constitutional
protections or even arguably constitute permissible behavior.
Compare Hartman, 69 M.J. at 468 (requiring a “discussion and
acknowledgment on the part of the accused of the critical
distinction between permissible and prohibited behavior” where
“a charge against a servicemember may implicate both criminal
and constitutionally protected conduct”) (emphasis added).
Thus, contrary to the CGCCA’s reasoning, the military judge did
not err in failing to explain why Appellee’s conduct was subject
to criminal sanction. See United States v. Medina, 72 M.J. 148(C.A.A.F. 2013); Hartman, 69 M.J. at 469.
What remains is to determine whether Appellee’s plea was
otherwise provident under United States v. Care, 18 C.M.A. 535,
40 C.M.R. 247 (1969), and Rule for Courts–Martial 910. Here,
the stipulation of fact stated that Appellee knew that the
victim “was asleep and an unwilling participant,” and there are
no facts or statements in the record that are inconsistent with
Appellee’s stipulation. Although this fact was neither set
forth in the specification nor explored by the military judge
during the providence inquiry, the military judge was allowed to
consider the stipulation of fact in determining whether
Appellee’s plea was provident, and whether Appellee’s conduct
under the circumstances implicated constitutionally protected
4
United States v. Whitaker, No. 13-5004
conduct. Jones, 69 M.J. at 299. Considering the stipulation of
fact in conjunction with the providence inquiry, which
adequately covered the elements of Article 125, UCMJ, there is
no substantial basis in law or fact to question the providence
of Appellee’s plea.
Decision
We answer the certified issue in the affirmative, and
reverse the decision of the United States Coast Guard Court of
Criminal Appeals as to Additional Charge II and its sole
specification. The decision of that court as to the remaining
charges and specifications is affirmed. The record of trial is
returned to the Judge Advocate General of the Coast Guard for
remand to that court for further review under Article 66(c),
UCMJ, 10 U.S.C. § 866(c) (2006).
5