PACER where are you?

Came across this today on a case pending before NMCCA.

Yesterday, March 25, 2014, the sexual rights organization, National Coalition for Sexual Freedom (NCSF) filed a “freind (sic) of the court brief” (amicus curiae) in the case of a U.S. Marine. Lance Corporal Gregory Miles was convicted of adultery, attempted sodomy and indecent conduct in a Navy-Marine Corps Court. Miles was confined for 12 months, suffered a pay reduction and a bad-conduct discharge from the Marine Corp.

At Examiner.com

16 Responses to “USvMiles at NMCCA”

  1. AF Capt says:

    I can’t help but chuckle at their attorney’s name… Dick Cunningham.

  2. Sea Lawyer says:

    What is it about a private, consensual threesome that triggers the need for criminal charges? 

  3. phil cave says:

    Jealousy    

  4. Lieber says:

    PC is right :)
    Actually, I’m not a fan of the way we’ve failed to adhere to Lawrence v. Texas…but this was probably not the most sympathetic case to pick…since they were married to other service members.  Still, the sentence seems absurd.

  5. Christian Deichert says:

    I am almost as afraid to click on those links at work as I would be if this was a story about NAMBLA filing an amicus brief in a child sexual abuse case.

  6. Peanut Gallery says:

    Marcum redux?

  7. phil cave says:

    Understood.
     
    The link to the amicus brief is legit. Its a CAAF which without PACER we have to rely on others 

  8. Zachary D Spilman says:

    From the article at examiner.com:

    Lance Corporal Gregory Miles was convicted of adultery, attempted sodomy and indecent conduct in a Navy-Marine Corps Court. Miles was confined for 12 months, suffered a pay reduction and a bad-conduct discharge from the Marine Corp[s].
    . . .
    The case stems from a 2012 evening encounter with Miles and two women on a military base in Japan. All three were intoxicated and the two women were married [to] other members of the military. Miles admits to attempting a consensual threesome, however it was unsuccessful as he was not able to perform due to the amount of alcohol in his system.

    (emphasis added).

    The amicus brief is awfully light on the facts of the case (conspicuously so, I think), but military law already applies the liberty interest identified by the Supreme Court in Lawrence v. Texas, in contested cases and in guilty pleas. For an introduction to this issue, read my opinion analysis of United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page).

    The key precedent is United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004) (link to slip op.). In Marcum, CAAF applied the liberty interest identified by the Supreme Court in Lawrence 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 (paragraphing added, citation omitted). Considering that the encounter in Miles occurred on base and the two women were married to other service members (who I’d wager were deployed at the time), the third prong of Marcum is critical to the application of the Lawrence liberty interest to the attempted consensual sodomy conviction.

    So, what does the amicus say about the third prong of Marcum?

    Our discussion will address only the second part of the Marcum test. As to the first part, sodomy clearly falls within the Lawrence liberty interest. NCSF takes no po[si]tion on the military-specific third part.

    Br. at 11 n.18 (emphasis added). 

    Well, this only makes sense if there can be no additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest (in the past of course, since the prohibition against consensual sodomy was repealed). That argument seems like a non-starter to me.

    NCSF says the purpose of its brief is:

    To assist the Court in the important task of reaching a decision that

    (1) applies the Uniform Code of Military Justice (UCMJ) to the facts of this case in a manner consistent with constitutional precedents and principles applicable to criminal prosecutions directed at consensual non-injurious sexual conduct, and

    (2) is consistent with the mores of today’s “common propriety.”

    Br. at 1. Miles seems like the wrong case for this. Perhaps the NCSF should take a look at United States v. Jagassar, No. 38228 (A.F.Ct.Crim.App. Feb. 4, 2014) (link to unpub. op.), about which I wrote: How strange can private sexual activity be before it’s an “indecent act”?

  9. Lieber says:

    As I noted above, this wasn’t the best case for them.  However, much of the brief seems to have been centered on the sodomy and indecent acts provisions being unconstitutional on their face…their argument is that anything which can be Constitutionally criminalized may be done so under other statutes.  I’m very sympathetic to this point.  This looks like attempted adultery to me.  I have a real real problem with consensual sodomy (until now) and indecent acts being on the books (just as I do with the porn prohibition in GO1 (the local cultural sensitivies thing is bullcrap because we serve bacon in the DFACs)).  Those should have been struck after Lawrence.

  10. Christian Deichert says:

    Lieber – Having seen the original GO 1 from Desert Storm, I remain convinced that the spirit behind it was at least partially due to cultural sensitivity and the need to keep Saudi Arabia happy.  After that, it became more of a useful tool to keep troops in line.  I used to refer to GO 1A as the “no fun order” when I was TDS downrange.
     
    I can’t imagine too many Kuwaitis would actually be offended if we had alcohol rationing in Kuwait similar to the 3-a-day ration in Qatar; rumor is that the best way for local nationals to get liquor through customs at Kuwait City IAP is to bring an extra bottle for the customs inspector, and I’ve read that home-brewing is a popular hobby in Kuwait.
     
    But I digress from the main topic at hand.  (And I’m still not clicking on those links on a government computer.)

  11. Zachary D Spilman says:

    Just for you Christian Deichert, the amicus brief is now posted on our server at this link (I ran OCR on the brief). It’s a 1 MB, 39-page PDF. 

  12. ResIpsaLoquitur says:

    I don’t know–even if it’s intended to placate the locals, I saw a lot of incongruency in the application of GO-1B.  To wit: my recollection is that it had a “morale” exemption that adult material could be purchased as long as it was from a “morale” source, such as AAFES.  This led to the bizzare result that, say, a DVD of “True Blood” purchased from AAFES would meet the exemption to the GO, but the same DVD purchased on Amazon and shipped overseas wouldn’t.  And then there’s the fact that when you’re on a multinational installation, the American Exchange might only have tame material–maybe a copy of Cosmo–but the German PX equivalent has nothing but gratuitous female nudity on everything it’s seling.

  13. Christian Deichert says:

    ZS — You’re my hero of the day.  I feel so special!
     
    RIL — I recall the exemption was for any material that could be purchased at the PX downrange.  (I was just talking to someone about this the other day — they said the only way to actually verify it was by talking to the store manager to see what they stocked.  You couldn’t rely on looking at the shelf, because anything that was juicy enough was sold out almost immediately.)
     
    I also know of a brigade that somehow declared that Playboy was exempt because it wasn’t obscene.  Their BJA (who shall remain nameless, but later taught at the Army JAG School) issued an opinion to that effect.  I’m guessing said opinion was never forwarded to their higher headquarters or to CENTCOM for approval.
     
    But I hear you.  I had a client who was arrested for assaulting some carabinieri on an Italian FOB in Iraq after he got too liquored up at their bar.  They roughed him up but good before turning him over to the MPs.

  14. k fischer says:

    Sea Lawyer, sounds like one of the married females made a complaint, or perhaps both of them did, as the amicus brief seems to indicate that there may have been some nonconsensual stuff alleged.  So, does anyone know how this got reported.
     
    Why is it that consensual sexual conduct has to result in 12 months in jail and a BCD?  
     
    Plus, he was so drunk that his equipment was not working and he was therefore was convicted of an attempt?  Sounds like he was far too drunk to consent to whatever these she-devils were doing to him.  He should have been given an SVC, instead of a TDS lawyer.  

  15. Charlie Gittins says:

    I long ago concluded that the military should MYOB when it comes to sex activity between consenting adults.  Why the hell the military wastes oxygen and money prosecutingadultery between consenting aduults who choose that course of action, consensual three-somes or sex in a bedroom where another person is sleeping has always perplexed me.  I had a guy once convicted of consensual sodomy after acquittal on rape of a Japanese National and one of the enlisted members told me that he was apoplectic during deliberations that the officers — all of whom had enjoyed a BJ or two in their lives — convicted on consensual sodomy (LIO had been instructed on on forcible sodomy).  FOrtunately BG Mulqueen exercised his power in clemency to SET ASIDE THE FINDING OF GUILTY and dismiss the charge.  Now that our dimwitted COngress has changed the law, that young Sergeant would stand convicted of a sexual offense.  Get the military the hell out of the bedroom!
     

  16. stewie says:

    Depends on the adultery.  Cheat on your spouse “out on the economy” so to speak, between you and your spouse.
    Pull a Jody on your fellow Soldier? Different thing…not that it should be the sole charge on the charge sheet, but to me that’s a more defendable thing then your garden-variety adultery that has no bearing on good order and discipline.
    I refuse to believe the universe of adultery scenarios that are service discrediting is anything bigger than a thimble, same goes with threesomes or swapping or any of the other things the kids are doing today.