CAAF decided United States v. Goings, No. 11-0547/AR, 72 M.J. 202 (CAAFlog case page) (link to slip op.), on May 23, 2013, finding that the Appellant’s actions permitting a third-party to watch and videotape consensual sexual activity is not constitutionally protected, and also finding that the Appellant was not prejudiced by the Government’s failure to explicitly allege a terminal element of the charged Article 134 offense of indecent acts, affirming the Army CCA and the findings and sentence.
Judge Ryan writes for a nearly-unanimous court, as she is joined by Chief Judge Baker, Judge Erdmann, and Senior Judge Effron. Only Judge Stucky dissents.
When German police executed a search warrant on the off-post residence of Staff Sergeant Goings, U.S. Army, they found enough evidence to lead to his conviction in 2008, contrary to his pleas, by a military judge sitting as a general court-martial, of one specification of rape and one specification of indecent acts, in violation of Articles 120 (pre-2007) and 134, UCMJ (of note, separate conduct formed the basis of the rape and indecent acts convictions) (also of note, this conduct predated the 2007 inclusion of indecent acts as an offense under Article 120). The Appellant was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge. On appeal the Appellant raised an as-applied constitutional challenge to his conviction of indecent acts in violation of Article 134 for the following:
In that [Appellant], U.S. Army, did, at or near Leimen, Germany, between on or about 15 February 2003 and 1 February 2006, wrongfully commit an indecent act with another male and 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.
The Army CCA considered this case twice, first rejecting the Appellant’s constitutional claim, and then rejecting a challenge that the specification fails to state an offense because the Government failed to expressly allege a terminal element (note: I can’t find these opinions anywhere). CAAF then granted review of two issues involving the indecent acts offense:
I. Whether Lawrence v. Texas [539 U.S. 558 (2003)] 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.
Judge Ryan’s treatment of both issues is fact-dependent, due to the facts that the Appellant’s trial strategy was based “on the ground that neither clause 1 nor clause 2 of the terminal element had been met, [which the Defense emphasized] during both [its] cross-examination of Government witnesses and closing argument,” and that “[a]t no time during trial did Appellant raise the argument that he was not guilty because his conduct was constitutionally protected. Instead, his defense was that his conduct was neither prejudicial to good order and discipline nor service discrediting.” Slip op. at 4-5. Judge Ryan also clarifies that this is an as applied challenge, as the “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.” Slip op. at 7.
The failure of the Defense to raise the constitutional challenge at trial is a significant barrier to appellate relief in this case, and Judge Ryan uses a lengthy footnote to explain that:
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. 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.
Slip op. at 7 N.3 (citation omitted). Then she explains that because this is an allegation of constitutional error, and there is a presumption against waiver of constitutional rights, CAAF will consider the issue forfeited rather than waived and review the case for plain error. Remember this point, as it resurfaces in Issue II.
Judge Ryan then defines the normal three-prong plain error test (“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.” Slip op. at 8 N.4.). This test continues CAAF’s quiet abandonment of the burden shift from United States v. Powell, 49 MJ 460, 465 (C.A.A.F. 1998) (in a plain error analysis, where constitutional error is at stake, “the burden shift[s] to the Government to show that the error was not prejudicial.”), which I first discussed in The Hazard of Humphries. However, the court has yet to explicitly abandon this legally inaccurate (and paradoxical) burden shift; a fact I recently complained about in my analysis of Chief Judge Baker’s majority opinion in United States v. Clifton, 71 M.J. 489 (C.A.A.F. 2013).
But for anyone who is not incurably fixated on the intricacies of CAAF’s treatment of the plain error test (meaning pretty much everyone but me), the real heart of Judge Ryan’s opinion is her plain error analysis of the as applied constitutional challenge to the conviction of indecent acts. Judge Ryan begins by explaining that “[t]here is no question that Appellant’s rights as a member of the military are not coextensive with those enjoyed by civilians.” Slip op. at 8 (citing Parker v. Levy, 417 U.S. 733, 758 (1974)). She then continues:
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, and we do not doubt that permitting the filming of those same acts is also sufficient. 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, which Marcum recognized as affecting the nature and reach of Lawrence.
Slip op. at 9-10 (citations omitted). This analysis is a clear reminder that Lawrence doesn’t create a blanket protection for sexual activity. Put differently:
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.
Slip op. at 11. Moreover, the difference between 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” (Slip op. at 12), and the conduct in this case that was criminalized by the presence and participation of the third person, is a key distinction that differentiates this case from Lawrence. Judge Ryan explains that, “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.” Slip op. at 12. But no such facts were developed in this case (as the Defense focused on the terminal elements and did not raise the possibility of constitutional protections), and the majority concludes that “the military judge did not commit error, let alone plain and obvious error, in failing to sua sponte raise a Lawrence issue.”
This is at least a partial adoption of the Government’s position, advanced in its briefs (and discussed in my argument preview), that Lawrence and Marcum do not apply to this case because “Lawrence does not extend a zone of privacy to appellant’s indecent act because the offense by its very nature tends to be service discrediting” (Gov’t Br. at 5), and “[c]onduct that would tend to bring the armed forces into disrepute is necessarily outside the Lawrence zone of privacy as applied to the military in this case” (Gov’t Br. at 19). However, I suspect that the majority would have approached this issue differently had the Defense litigated the constitutional question at trial (and Judge Stucky’s dissent focuses on some of the factual matters that would have been relevant to a trial-stage as applied challenge). Unfortunately, we don’t know if this issue wasn’t litigated at the trial stage because the Defense didn’t see the issue or because the Defense decided that this wasn’t a battle worth fighting. I find it hard to fault a defense counsel for the former (because even the very best attorneys routinely miss issues), but I have near-zero tolerance for the latter (unless the issue is plainly frivolous, which in this case it obviously was not). Raising issues is one of the primary duties of a defense counsel.
Judge Ryan then turns to the second issue, which is the lack of both an expressly-alleged terminal element and a defense objection to that omission. She begins by flatly rejecting the ACCA’s conclusion that “the charge and its specification can be reasonably construed to imply [the terminal element],” as “[t]he 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.” Slip op. at 13. Rather, “it was plain and obvious error for the Government not to allege the terminal element.” Slip op. at 14. This error is tested for material prejudice to a substantial right, which involves a close examination of the record to determine if “notice of the missing element is somewhere extant,” or if “the element is essentially uncontroverted.” Slip op. at 14. But the majority is clearly frustrated with the way the CCAs have conducted this analysis, and Judge Ryan begins by outlining how an appellate court shouldn’t conduct this analysis:
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 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.
Slip op. at 15-16 (emphasis added). This is a dense paragraph, but it explains that evidence of notice cannot be found in mere witness testimony, Government argument, instructions from the judge, or a demonstration of “defense counsel’s general awareness” of the missing element.
But if the Defense does something more, then that can provide the evidence of notice needed to find no prejudice. For instance, in this case:
In its opening statement, the Government stated that it would call First Sergeant (Sgt) [P], who would “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 P, 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 P 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) [O], 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 element through the testimony of First Sgt [P] and SFC [O].
Slip op. at 16-18. A footnote explains how the Government’s actions in this case are different from those found inadequate in Humphries, where “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.” Slip op. at 16 N.7 (quoting Humphries, 71 M.J. at 216). And so the majority finds no prejudice and affirms.
But considering how Judge Ryan ties each additional action by the Government to a reaction by the Defense, I’m not convinced that the majority would reach the same conclusion if the Defense had done nothing in response to the Government’s discussion of terminal elements in its opening statement, its presentation of testimony about affect on terminal elements, and its closing argument.
Just like Judge Erdmann’s analysis in United States v. Tunstall, No. 12-0516/AF, Judge Ryan’s analysis in this case convinces me that I was right when I wrote in The Hazard of Humphries that “the way for an accused to get relief under Humphries is to not raise the issue at the time of trial – to sandbag the trial court and then claim lack of notice on appeal.”
That said, Judge Ryan appears to caveat the use of the plain error test for this issue:
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.
Slip op. at 14. This language could be read to mean that the majority would consider a failure to object in a post-Fosler trial as waiving the issue, precluding appellate review. But “allegation of the terminal element is constitutionally required” (United States v. Fosler, 70 M.J. 225, 233 (C.A.A.F. 2011)), and Judge Ryan notes just a few pages earlier in this opinion that CAAF applies a “(1) presumption against the waiver of constitutional rights and (2) [a] requirement that a waiver clearly establish an intentional relinquishment of a known right or privilege.” Slip op. at 7 (citation and marks omitted). Whether a case was tried pre- or post-Fosler is immaterial to the constitutional nature of the error in the Government’s failure to explicitly allege a terminal element in an Article 134 specification, and it similarly doesn’t change the nature of appellate review of such an error.
The mere failure to object – creating a record that is silent – cannot “clearly establish an intentional relinquishment of a known right.” Even in a post-Fosler trial, a mere failure to object must only forfeit the error, leading to a plain error analysis and a close examination of the record. Like in this case (and Tunstall), that analysis will include consideration of the actions of the defense in response to the Government’s presentation of evidence that might satisfy a terminal element of Article 134. The more forceful the defense reaction to the actions of the Government’s to prove a terminal element, the less likely the accused is to receive relief on appeal. CAAF continues to give trial defense counsel faced with a defective Article 134 specification a reason to do noting, waiting to complain about a lack of notice only if the accused is convicted.
Judge Stucky’s dissent does not reach the issue of the missing terminal element, except in a brief footnote on the first page where he explains that he would agree with the majority that the Appellant was not prejudiced. Instead, Judge Stucky would find that “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.” Diss. op. at 1 N.1.
Judge Stucky agrees that “Appellant’s rights as a military member are not coextensive with those enjoyed by civilians” and that “Lawrence does not protect all sexual conduct.” Diss op. at 6. But he finds that “the majority mischaracterizes the reach of Lawrence.” Id. “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.’” Id. (quoting Lawrence, 539 U.S. at 564, 565, 572). Because “[t]he record establishes that the video was filmed consensually, by adults, in a private place — Appellant’s home,” Judge Stucky finds that it is of a nature to bring it under the Lawrence liberty interest. Diss op. at 10.
Notably, Judge Stucky highlights that the Defense challenged and won dismissal of a separate indecent acts specification that did not involve the presence of a third person:
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.
Diss. op. at 3 N.4. He also highlights that during the trial the Defense referred to the Appellant’s “conduct as ‘constitutionally protected activity’ more than once.” Id.
Judge Stucky’s dissent continues with a criticism of the majority’s approach as blending the question of factual sufficiency with the existence of constitutional protection. He sees the majority as holding the Appellant’s conduct as outside the Lawrence liberty interest “because it was not ‘wholly private,’ 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.” Diss. op. at 11. But the finder of fact’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.” Diss. op. at 11.”[I]t 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.” Diss. op. at 12.
Moreover, Judge Stucky also does not believe that United States v. Berry, 6 C.M.A. 609, 614 (1956) (establishing the “open and notorious” test for indecent acts) remains good law after Lawrence. Diss. op. at 14. Then, considering the absence of other factors, such as intent to distribute the video, Judge Stucky concludes that “nothing takes the sexual activity outside of Lawrence in this case.” Diss. op. at 17.
Finally, Judge Stucky determines that “there is no additional factor relevant solely in the military environment that affect[s] the nature and reach of the Lawrence liberty interest.'” Diss. op. at 20 (quoting Marcum, 60 M.J. at 206.).
He ends his dissent with a plain acknowledgement of the supremacy of a constitutional liberty interest over a military-specific consideration:
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.
Diss. op. at 21. There’s a lot more to Judge Stucky’s dissent (which is three pages longer than Judge Ryan’s majority opinion), but his is a lone voice that would recognize that Appellant had a right to engage in consensual sexual activity while being videotaped by a third person in the privacy of his own home.
As discussed above, I worry that the Defense did not litigate this as applied challenge at the trial stage because it didn’t see it as a battle worth fighting (even though the Defense did win dismissal of a puritanical specification that sought to criminalize the Appellant’s mere video recording of another’s “naked genital area”), and I wonder why the Defense described the Appellant’s conduct as “constitutionally protected activity” during trial but did not raise this “constitutional protect[ion]” as a basis for dismissal.
The majority’s approach should encourage future litigants to fight such a fight at the trial stage, as Judge Ryan specifically notes that “[h]ere, the defense did not raise such an issue at trial or develop [the necessary] facts in a motion proceeding.” Slip op. at 12. I think that CAAF’s recent jurisprudence shows that the court is much more willing to consider a new issue when it is first raised at trial (i.e., the unnecessity of pleading terminal elements was settled law until CAAF reviewed the trial-stage objection in Fosler).
ACCA opinions (unavailable / summary affirmation)
• Blog post: What’s Goings on
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s Reply brief
• Blog post: Argument preview
• CAAF argument audio
• CAAF opinion
• Blog post: Opinion analysis