CAAF today granted review of this issue: “WHETHER APPELLANT’S CONVICTION UNDER ARTICLE 125, UCMJ, FOR CONSENSUAL SODOMY IN THE PRESENCE OF A THIRD PERSON VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.” United States v. Hartman, __ M.J. __, No. 10-0291/MC (C.A.A.F. Nov. 9, 2010). NMCCA’s second unpublished decision in the case is available here. United States v. Hartman, No. NMCCA 200900389 (N-M. Ct. Crim. App. June 22, 2010) (per curiam). CAAF had summarily reversed NMCCA’s first opinion in the case:
[W]e note that the decision of the court below is not free from ambiguity with respect to the factual question whether it was “reasonably likely” the third party would have observed the conduct at issue. See United States v. Izquierdo, 51 M.J. 421 (C.A.A.F. 1999). Accordingly, it is, ordered that the petition for grant of review is granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further review consistent with Izquierdo.
NMCCA’s original opinion is available here. United States v. Hartman, No. NMCCA 200900389 (N-M. Ct. Crim. App. Dec. 29, 2009).