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.