The last scheduled oral argument at CAAF in January is in United States v. Castellano, No. 12-0684/MC, on the following granted issue:
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?
Lance Corporal Castellano was originally charged with unspecified sexual assaults and forcible sodomy involving multiple alleged victims. However, he was convicted (in accordance with his pleas) of adultery, and (contrary to his pleas) of two specifications of indecent conduct, one specification of sodomy (as a LIO of forcible sodomy), and two specifications of assault consummated by a battery (as LIOs of the unspecified sexual assault charges), by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for eighteen months, reduction to E-1, total forfeitures, and a bad-conduct discharge.
However, in June, 2012, the NMCCA set-aside the assault convictions due to the trial military judge’s failure to properly instruct the members on the availability of the defense of mistake of fact as to consent. The CCA then reassessed and approved the adjudged sentence.
The NMCCA also considered, and rejected, a challenge to the trial military judge’s application of the factors outlined in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In Marcum, CAAF applied the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), to sodomy prosecutions under Article 125, UCMJ, via a three-part test: “First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” Marcum, 60 M.J. at 206-207.
Specifically, this Appellant argued before the NMCCA that the trial military judge erred when he considered the Marcum factors as a question of law, and refused to submit them to the members for their determination as de facto elements. The NMCCA rejected this argument, as it had before (see United States v. Useche, 70 M.J. 657 (N-M.Ct.Crim.App. 2012), rev. denied, 71 M.J. 379 (C.A.A.F. 2012); see also United States v. Stratton, No. 201000637 (N-M.Ct.Crim.App. Jan. 26, 2012) (unpublished) (discussed here)) and as it has again since (see United States v. Pearce, No. 201100110 (N-M.Ct.Crim.App. Nov. 28, 2012) (unpublished)). The NMCCA’s rejection of the Marcum-factors-as-elements argument hasn’t prevented that court from granting relief (it set-aside the findings in Stratton after concluding that the military judge improperly applied the factors), but that court has consistently held – as it did in this case – that “[j]udicially created principles, such as the Marcum factors, are not elements of offenses.” United States v. Castellano, No. 201100248 (N-M.Ct.Crim.App. Jun. 26, 2012).
And the NMCCA is not alone: The AFCCA reached the same conclusion in United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010) (“The appellant asserts that the Marcum factors are de facto elements of his Article 133, UCMJ, offense and that it was error for the military judge not to instruct the members on the Marcum factors. We disagree.”). Moreover, the Marcum factors appear in another case this term: United States v. Goings, No. 11-0547/AF. In that case, CAAF is asked to apply the Marcum factors to a conviction of indecent acts in violation of Article 134 (though that case was tried by a military judge alone, limiting the analytical similarities between it and Castellano).
All these factors mean that CAAF’s decision to grant review of this issue make this case one to watch closely. And the Appellant’s brief opens with some strong language:
It is axiomatic that Congress defines criminal conduct. But the distinction between constitutionally-protected and criminal conduct is sometimes thin. In the absence of legislation to resolve such distinctions, courts interpret criminal statues to avoid running afoul of the Constitution. And doing so, courts may identify factors to be used in determining whether certain conduct is punishable. Generally speaking, such judicially-created factors are for the trier-of-fact to determine.
To permit otherwise is to allow, as an interlocutory matter, the determination as to whether or not an alleged act was criminal, and only then ask a trier-of-fact to find beyond a reasonable doubt whether the act occurred. In cases like this one, where the charge is forcible sodomy, consent is a defense. But if the Marcum factors are an interlocutory matter, the accused is placed in the impossible predicament of defending himself against the military judge. All that is left for the members to decide is whether the act occurred or not. A finding by the trier-of-fact that the act occurred results in strict liability under this method.
Appellant’s Br. at 5-6. The Appellant’s brief effectively highlights that the Appellant was also charged with indecent acts under then-Article 120(k), which has the judicially-created element that the conduct must have an aggravating factor such as being “open and notorious,” and that the members were instructed on this point and told specifically that “[i]n the absence of aggravating circumstances, private, consensual, sexual activity is not possible[ly] punishable as an indecent act.” App. Br. at 8. But despite Defense protest, the military judge would not give a similar instruction on the sodomy charge.
The Appellant’s brief also attacks the CCA’s view that the Marcum factors are questions of law, not questions of fact.
This reflects an erroneous view of the law. Whether the Marcum factors are present is not a question of law. Rather, it is a factual question in that the fact finder must determine whether a certain fact exists. If the requisite facts exist, as a matter of law, the conduct is not constitutionally protected.
There is nothing novel about this approach, as there are other circumstances where the determination of an act’s legality depends on facts and is therefore made by the members.
App. Br. at 15. The brief analogizes this case to a situation where an accused raises an affirmative defense. While a military judge makes the threshold determination of whether the affirmative defense is raised by the evidence, it is the finder of fact that determines whether the affirmative defense exists.
Finally, quoting the Military Judge’s Benchbook, the Appellant’s brief illustrates other offenses where the finder of fact must make a determination that is similar to the Marcum factors:
Article 85-Desertion with intent to avoid hazardous duty or to shirk important service: Whether a (duty is hazardous) (service is important) is a question of fact for [the members] to determine and depends on the circumstances of the case.
Article 107-False official statement: Whether a statement or document is official is normally a matter of law to be determined as an interlocutory question. However, even though testimony concerning officiality may be uncontroverted, or even stipulated, when such testimony permits conflicting inferences to be drawn, the question should generally be regarded as an issue of fact for the members to resolve.
Article 130-Housebreaking: Whether the accused unlawfully entered the building or structure is a fact for the members to determine based on all the facts and circumstances of the case.
Article 134-Offenses against Correctional Custody: Whether the person who allegedly imposed correctional custody in this case was in such a position of authority is a question of fact which [the fact finder] must decide.
Article 134-Wrongful refusal to testify: If an accused refused to testify based on a claim of self-incrimination which would ordinarily be valid, but an issue of fact exists as to whether trial of the accused for the offense as to which the privilege was asserted was barred because of a grant of immunity, former trial, the running of the statute of limitations, or some other reason, the military judge should submit such issue to the members, with carefully tailored instructions.
App. Br. at 16-17 (reformatted).
The Government’s response begins with an emphasis on the role of the military judge as the exclusive authority for deciding questions of law in courts-martial. Particularly, the Government cites United States v. New, 55 M.J. 95 (C.A.A.F. 2001), where the court determined that the question of the lawfulness of a military order is a question of law to be decided by the military judge. CAAF’s analysis in New turned on the question of a consistent application, particularly since if the question of lawfulness was put to the finder of fact, then “the validity of regulations and orders of critical import to the national security would be subject to unreviewable and potentially inconsistent treatment by different court-martial panels.” Gov’t Br. at 9 (quoting New, 55 M.J. at 105) . Of course, the consensual sodomy at issue in this case isn’t akin to “regulations and orders of critical import to national security,” right?
While this is not a case of national security import, the next case may be. One need only look to the national headlines to find situations where men with access to even the most highly classified information find themselves at the heart of similar scandalous conduct. As such reserving constitutional analyses in the hands of the military judge helps to avoid the potentially inconsistent, if not altogether constitutionally flawed, analyses that may occur if the Marcum factors are left for members to decide.
Gov’t Br. at 9. So the Marcum factors should be reserved for the judge because Lance Corporals performing cunnilingus is a threat to national security?
The Government’s brief also analogizes the Marcum factors to the determination of whether personal jurisdiction exists in a particular case, citing United States v. Bailey, 6 M.J. 965 (NCMR 1979). But in Bailey (a desertion case), the court of military review discussed the fact that an accused’s military status is both part of a jurisdictional challenge (a question of law to be decided by the military judge) and part of the military offenses of desertion, violating an order, disrespect, etc., and may therefore be raised before the finder of fact on the merits. In fact, the Government’s brief highlights this point:
The court found that the military judge must determine the legal question of personal jurisdiction by a preponderance of the evidence, whereas the factual question of “military status, when it bears on the ultimate issue of guilt or innocence, may be raised again during trial on the merits, and at that time the Government must prove beyond a reasonable doubt that the accused is a member of the military.”
Gov’t Br. at 10 (quoting Bailey, 6 M.J. at 969) (emphasis added). The Government’s reference to Bailey only emphasizes a point raised in the Appellant’s brief: The Government must prove all of the elements at trial beyond a reasonable doubt, but it need only prove facts necessary to resolve preliminary questions by a mere preponderance of the evidence. Leaving the Marcum factors – which must be satisfied to sustain a conviction – in the hands of the military judge means that the Government can convict an accused without proving essential facts beyond a reasonable doubt.
The Government’s brief also discusses the failure of Congress to note the Marcum factors: “…since this Court’s decision in 2004, Congress has not added elements to Article 125 incorporating the Marcum factors. . . . Article 125 is intentionally silent as to the Marcum factors because neither Congress nor the President intend for them to be construed as criminal elements of the crime.” Gov’t Br. at 12-13. Of course, Congress is silent about a lot of things these days. Like the federal budget, for example. Perhaps this means that neither the Congress nor the President intends for federal employees to be paid?
Finally, the Government argues that even if the members should have determined the Marcum factors, the error is harmless in this case because of the active duty status of both the Appellant, his wife, and the third-party, as well as the military relationship between the Appellant and the third party. Accordingly, “any trier-of-fact, would have found beyond a reasonable doubt that the sodomy between Appellant and LCpl [B] fell outside of the Lawrence liberty zone and would have convicted accordingly.” Gov’t Br. at 25. I suspect that this he’s-obviously-guilty-so-affirm argument could be made in every case involving instructional error, but is rarely successful.
Presumably, if the AFCCA and NMCCA had it right on this issue, then CAAF wouldn’t have granted review. But there’s also the passage of time and the changed circumstances to consider: Homosexuals are now permitted to serve openly in the armed forces, increasing the potential for Marcum(/Lawrence) issues to appear. Then there’s the media, which doesn’t appear to have discovered this case (yet), but might start taking a greater interest in just how the military prosecutes cases involving consensual sexual activity. These various factors mean that I don’t have any predictions for this case, other than that it’s going to be interesting.