CAAF has granted review of the following issue whose resolution will have widespread effect:
IN MILLER v. CALIFORNIA, THE SUPREME COURT HELD THAT THE TRIER OF FACT MUST DETERMINE WHETHER JUDICIALLY-CREATED FACTORS THAT DISTINGUISH BETWEEN CONSTITUTIONALLY-PROTECTED AND CRIMINAL CONDUCT ARE SATISFIED. THE FACTORS IDENTIFIED IN UNITED STATES v. MARCUM ARE AN EXAMPLE OF SUCH FACTORS BUT THE LOWER COURT HELD THAT THE MILITARY JUDGE MUST DETERMINE WHETHER THE MARCUM FACTORS ARE SATISFIED. WHO DETERMINES WHETHER THEY HAVE BEEN SATISFIED?
United States v. Castellano, __ M.J. __, No. 12-0684/MC (C.A.A.F. Oct. 17, 2012).
NMCCA’s unpublished opinion in the case is available here. United States v. Castellano, No. NMCCA 201100248 (N-M. Ct. Crim. App. June 26, 2012) (per curiam). NMCCA reasoned:
In Marcum, the Court of Appeals for the Armed Forces (CAAF) outlined three factors used to determine whether certain sexual activity falls within the liberty interest outlined in Lawrence. 60 M.J. at 207. These factors are questions of law properly analyzed by the military judge, not questions of fact to be determined by the trier of fact. United States v. Stratton, No. 201000637, 2012 CCA LEXIS 16, at *9, unpublished op. (N.M.Ct.Crim.App. 26 Jan 2012); see United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009) (holding that military judge does not abuse his discretion by failing to instruct members on Marcum analysis). Inherent in this determination is the principle that “[w]hether an act comports with law, that is, whether it is legal or illegal, is a question of law, not an issue of fact for the determination by the triers of fact.” United States v. Carson, 35 C.M.R. 379, 380 (C.M.A. 1965). This principle informs not only the question of whether the Marcum factors must be answered by the military judge or the trier of fact, but also whether the Marcum factors must be included in a specification.
The appellant argues in assignment of error IV that the Marcum factors must be plead and submitted to the trier of fact as de facto elements. However, “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in a case of federal crimes, which are solely creatures of statute. Liparota v. United States, 471 U.S. 419, 424 (1985). Judicially created principles, such as the Marcum factors, are not elements of offenses. As explained in Carson, the Marcum analysis is instead a question of law decided by the military judge. 35 C.M.R. at 380.
Id., slip op. at 7.