CAAF decided United States v. Castellano, No. 12-0684/MC, 72 M.J. 217 (CAAFlog case page) (link to slip op.), on May 23, 2013, finding that since an act of sodomy may not be criminalized unless there are factors that remove sexual activity from the protected liberty interest identified by the Supreme Court in Lawrence v. Texas, then the existence of such factors must be determined by the trier of fact, reversing the NMCCA and setting aside the finding of guilty of sodomy and the sentence.
Judge Ryan writes for a unanimous court, with Judge Stucky concurring in a separate opinion in which he voices some non-dispositive (to this case) disagreement with the rest of the court.
The Appellant was convicted (in accordance with his pleas) of adultery, and (contrary to his pleas) of one specification of attempted adultery, 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 aggravated sexual contact), 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.
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.
The Appellant argued 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 did again afterward (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.”).
But CAAF explains that this conclusion is wrong. Judge Ryan begins her discussion by explaining that “in Lawrence, the Supreme Court identified a constitutionally protected liberty interest in private sexual activity between ‘full[y] and mutual[ly] consent[ing]’ adults.” Slip op. at 10 (quoting Lawrence v. Texas, 539 U.S. 558, 578 (2003)). She continues, explaining that in Marcum, the court upheld the constitutionality of Article 125’s criminalization of sodomy by construing the statute to apply only to acts of sodomy that involve a factor identified by the Supreme Court as not involved in Lawrence, or a factor unique to the military environment that affect the nature and reach of Lawerence. This leads to a critical analytical turning point: Marcum factors are not statutory elements, however “but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction.” Slip op. at 11-12. Accordingly, the existence of such a factor cannot be left to the military judge’s discretion.
This conclusion is based on four key findings. First,
two of the Marcum factors, force and sexual activity with a child, were identified by the President as warranting additional penalties long before either Lawrence or Marcum were decided. While only Congress may define the elements of a criminal offense, there is no question that the President may identify factors that warrant an increase in the maximum punishment. There is also no question that these aggravating factors, although not elements, must be pleaded in the specification, instructed upon to the members, and determined by the trier of fact.
Slip op. at 12-13 (citations omitted). Second,
in the context of a guilty plea, we held that a plea was improvident where there was no discussion of the Marcum factors between the military judge and the accused, noting that the presence of a Marcum factor is “a matter of ‘critical significance’” because it “distin[guishes] between what is permitted and what is prohibited.” Where, as here, the record supports a decision that the act of sodomy was private and was neither “by force” nor “without consent,” it is altogether unclear why establishing the presence of a Marcum factor is somehow less critical to an Article 125, UCMJ, conviction simply because Appellant contested the charge.
Slip op. at 13 (citations omitted). Third,
committing the determination whether a Marcum factor exists to the trier of fact is consistent with the Supreme Court’s and this Court’s treatment of judicially created standards that distinguish criminal conduct from that which is constitutionally protected in different contexts.
Slip op. at 14 (citation omitted). Fourth,
there is no question that where, as here, an otherwise unconstitutional criminal statute is construed in such a way as to limit its reach to conduct that may constitutionally be subject to criminal sanction, the facts under that “saving construction” have constitutional significance. These facts are critical to a conviction as, absent such facts, the conduct is not criminal. Therefore, they must be determined by the trier of fact.
Slip op. at 15 (citation omitted).
Judge Ryan concludes: “For all of these reasons, we hold that whether a Marcum factor exists is a determination to be made by the trier of fact based on the military judge’s instructions identifying facts or factors that are relevant to the constitutional context presented.” Slip op. at 16.
In a brief concurring opinion, Judge Stucky notes that as discussed in his dissent in United States v. Goings, No. 11-0547/AR (discussed here), he believes that the majority “mischaracterizes” Lawrence.
Considering that the Government’s brief in this case (discussed extensively in my argument preview) analogized a military judge’s consideration of Marcum factors to the similar consideration of the lawfulness of an order, I think that CAAF’s treatment of the factors as a constitutional saving of an otherwise unconstitutional statute is brilliant. But the court also appears at least a little uncomfortable with Article 125, noting in a footnote that:
Of course, nothing we say here precludes an accused from: (1) challenging the sufficiency of the evidence supporting a conviction for consensual sodomy, see R.C.M. 917; (2) making out an as-applied challenge on the basis that his interests should overcome Congress’ and the President’s determinations that his conduct be proscribed, see United States v. Vazquez, 72 M.J. 13, 16-21 (C.A.A.F. 2013); or (3) moving to dismiss the consensual sodomy charges under R.C.M. 907(b)(1)(B). The resolution of those legal issues is left to the sound discretion of the military judge and appellate review.
Slip op. at 16 N.10. Even without this footnote, Castellano is a significant case, and sodomy prosecutions in the near term will be burdened with litigation over the precise wording of instructions to be given to members so that they can determine if a Marcum factor (such as the broad: “additional factors relevant solely in the military environment”) exists. But I predict that this new hurdle for prosecutors won’t be the last.
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