NMCCA dismisses a conviction for consensual homosexual sodomy in United States v. Stratton.  It’s unpublished but worth the read.

Appellant was accused of forcible sodomy, but was convicted of consensual sodomy.  That means Lawrence and Marcum had to be discussed.  Read this case for the following:

• A discussion and reiteration of a “private” location is . . .  The discussion may be fruitful beyond an Article 125 case.
• A discussion of and that “the military judge’s ruling that the general disruption to the unit [of the investigation of the charges] implicated the third Marcum prong is untenable (emphasis added).
•   When a TC proffers something to the court, double-tap that for accuracy, and vice-versa.
• Broad talismanic incantations are as unhelpful in analyzing Marcum factors as they are in Mil. R. Evid. 404(b), situations.
• The court avoided the issue of whether Marcum “effectively incorporated new elements into the Article 125, UCMJ, charge and that these new elements should have been properly plead and submitted to the trier of fact. Essentially, the appellant argues that the Marcum factors are questions of fact to be answered by the trier of fact.”  Slip op. at  5, 6 n.1.
• The court avoided the issue:

  I.   POST-LAWRENCE, SODOMY IS NOT A CRIME UNLESS THERE ARE ADDITIONAL CRIMINAL ELEMENTS THAT FURTHER A LEGITIMATE STATE INTEREST.  OVER DEFENSE OBJECTION, THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT SODOMY WAS A LESSER INCLDUED OFFENSE OF THE CHARGED CRIME OF FORCIBLE SODOMY.  THE MEMBERS THEN RETURNED A VERDICT OF NOT GUILTY TO FORCIBLE SODOMY, BUT GUILTY TO SODOMY.  THE THEORY OF PROSECUTION FOR SODOMY WAS BASED ON ADDITIONAL FACTS ALLEGED BY THE GOVERNMENT AFTER THE TRIAL BEGAN.  THESE FACTS WERE: (1) NOT ELEMENTS DEFINED BY CONGRESS UNDER ARTICLE 125, UCMJ, (2) NOT ALLEGED ON THE CHARGE SHEET; AND (3) NOT SUBMITTED TO THE MEMBERS AND PROVED BEYOND A REASONABLE DOUBT.  IS APPELLANT’S CONVICTION FOR CONSENSUAL SODOMY UNCONSTITUTIONAL IN LIGHT OF THESE DUE PROCESS VIOLATIONS?

In two separate per curiam opinions and one summary disposition, CAAF remanded three drug lab confrontation cases to the Air Force Court of Criminal Appeals for consideration of whether the confrontation error was harmless beyond a reasonable doubt.  The per curiam cases were United States v. Cavitt and United States v. Dollar.  The summary disposition came in United States v. Garcia-Varela.

CAAF also specified the following confrontation issue in United States v. Sweeney :

WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS, 129 S. CT. 2527 (2009), IN ASSERTING THAT UNITED STATES v. MAGYARI, 63 M.J. 123 (C.A.A.F. 2006), “FOUND DRUG LABORATORY REPORTS TO BE NON-TESTIMONIAL IN NATURE,” AND IN HOLDING (1) THAT DRUG LABORATORY DOCUMENTS WERE NON-TESTIMONIAL IN NATURE, (2) THAT THE LAB REPORT WAS A RECORD OF A REGULARLY CONDUCTED ACTIVITY OF THE NAVY DRUG SCREENING LABORATORY THAT QUALIFIED AS A BUSINESS RECORD AND FIRMLY ROOTED HEARSAY EXCEPTION UNDER M.R.E. 803(6), AND (3) THAT THERE WAS NOTHING TO SUGGEST THAT THE LAB REPORT WAS GENERATED FOR COURT-MARTIAL USE.  SEE UNITED STATES v. BLAZIER, 69 M.J. 218 (C.A.A.F. 2010); UNITED STATES v. BLAZIER, 68 M.J.439 (C.A.A.F. 2010); AND UNITED STATES v. HARCROW, 66 M.J. 154 (C.A.A.F. 2008).

In non-Blazier II news, CAAF granted review of an Article 125 liberty interest issue in the Coast Guard case of United States v. Medina:

WHETHER THE GOVERNMENT VIOLATES THE APPELLANT’S CONSTITUTIONALLY PROTECTED LIBERTY INTERESTS BY FAILING TO MEET THE MANDATORY FACTORS IDENTIFIED BY THIS COURT FOR A CONVICTION UNDER UCMJ, ARTICLE 125.

CAAF ordered the parties not to file briefs on this issue, which didn’t receive any treatment at CGCCA.

Yesterday we noted Major Joel P. Cummings’ very interesting article on Article 125 in the most recent Army Lawyer, available here. Twice in the article, MAJ Cummings opines that Marcum essentially created a new “prejudicial to good order and discipline” element for consensual sodomy charges preferred under Article 125. Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, Army Law., Jan. 2009, at 7, 9 (“the Marcum court essentially added to Article 125 the element of prejudice to good order and discipline from Article 134.”; “In effect, the Marcum court made consensual sodomy like an Article 134 offense requiring an element of prejudice to good order and discipline.”).

We also noted that during yesterday’s oral argument in Harvey at the Air Force Court, both the appellate defense and appellate government counsel agreed that Marcum had created a new de facto element for consensual sodomy charges tried under Article 125 (though the appellate government counsel argued that this de facto element didn’t apply to consensual sodomy charges tried under Article 133). Unbeknownst to me until today, at some point yesterday the Air Force Government Trial and Appellate Counsel Division (JAJG) tried to call an oral argument Mulligan. This is from a motion JAJG filed yesterday at some point after the oral argument:

Appellee would like to clarify a position taken by counsel during oral argument concerning the applicability of the Marcum factors. In cases where Marcum factors apply, the factors do not involve questions of fact that would be given to the members to determine. The United States does not believe that Marcum factors apply or should be given as part of the instructions to panel members in cases where a violation of Article 133, UCMJ, is charged. As explained during oral argument, a charge of Article 133 is wholly different in its nature and the considerations involved than a charge of Article 125. If, however, this Court determines that Marcum factors apply when Article 133 is charged, this means that the military judge should consider the Marcum factors as a question of law to determine if the charge is constitutional as applied to an accused. It does not mean that the members are given instructions as if the Marcum factors are a part of the elements to determine findings of fact. This is the position of the United States despite counsel’s statements during oral argument.

Likewise, in cases like Marcum where a violation of Article 125, UCMJ, is charged, the Marcum factors apply in that the Court should consider the factors as a matter of law to determine whether the charge is constitutional as applied to that case. This is what the Court did in Marcum regarding sodomy with a subordinate, and the Court found that the charge was Constitutional as applied rather than remanding the case for a finding of fact. The application of the Marcum factors does not mean that the factors become a part of the elements for sodomy or that instructions to the members should include the Marcum factors. Marcum means that the Court should consider the Marcum factors as a matter of law to determine whether the charge is constitutional as applied.

I’m actually surprised by JAJG’s attempt to walk back its position. If I were government counsel at a court-martial, I would prefer that the members rather than the military judge decide whether the case fell within one of the three Marcum factors. If it’s treated as a question of fact, then the members decide it, subject only to a factual and legal sufficiency review by the CCA and possible legal sufficiency review by CAAF and the Supremes. If, on the other hand, it’s treated as a question of law, then it’s subject to de novo review by the CCA, by CAAF, and by the Supremes. On the defense side of the house, at the trial level I would prefer it to be a question of law that I could ultimately win at CAAF rather than a factual question that the members would, in essence, definitively resolve. In some future Article 125 prosecution, a trial defense counsel who has the same view as me can now rely the government’s Harvey motion from yesterday in support.