CAAFlog » September 2012 Term » United States v. Goings

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.

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I’m abandoning the podcasting effort for now, due to some technological hurdles that I don’t have the time to figure out. Here’s a rundown of oral argument audio from cases heard in November:

CAAF Arguments:

NMCCA Arguments:

“[O]nce the decision to prosecute has been made, the attorney for the government should charge, or should recommend that the grand jury charge, the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.” United States Attorneys’ Manual, para. 9-27.300. The case of United States v. Goings, No. 11-0547/AR, is an example of what happens when prosecutors do the opposite.

When German police executed a search warrant on the off-post residence of Staff Sergeant Goings, USA, 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 and 134, UCMJ. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge. But CAAF won’t consider any issues relating to the rape conviction when it hears oral argument on Tuesday, November 13, 2012. Instead, the court will turn its attention to whether the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), extends a Constitutionally-protected zone of privacy to the following activity:

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 Appellant’s brief opens with an acknowledgement that military life is different from civilian life, and that “[in] light of the military mission, service members do not share the same autonomy as civilians.” Appellant’s Br. at 9. It then turns to discussion of the Supreme Court’s 2003 decision in Lawrence, and CAAF’s decision the next year in United States v. Marcum, 60 M.J. 198, where CAAF affirmed a conviction for consensual sodomy with a subordinate on the basis that “while servicemembers clearly retain a liberty interest to engage in certain intimate sexual conduct, this right must be tempered in a military setting based on the mission of the military, the need for obedience of orders, and civilian supremacy.” Appellant’s Br. at 12-14 (quoting Marcum, 60 M.J. at 207 (citations omitted)). It also mentions a similar ruling from CAAF in United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004), that also involved consensual sodomy between servicemembers of different grades. Appellant’s Br. at 14-15.

Marcum created a three-factor test: (1) was the conduct of a nature to bring it within the liberty interest identified by the Supreme Court – did it involve private, consensual sexual activity between adults; (2) did the conduct encompass any behavior Lawrence listed as outside its analysis; and (3) are there additional factors relevant solely in the military environment? Applying these factors, the Appellant’s brief first argues that the Appellant’s conduct was “wholly private and consensual activity.” Appellant’s Br. at 15. Next, it argues that it is not outside the Lawrence zone, particularly since “the fact a third party was present recording the sexual activity does not, in this case, constitute public conduct.” Appellant’s Br. at 16. Finally, the brief argues that because the Appellant’s conduct occurred off-base with non-military individuals, and because it was unknown to his command prior to his court-martial, it “does not involve additional factors relevant only in a military setting.” Appellant’s Br. at 17.

The Government’s brief takes a different approach: “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. The Government makes this argument by characterizing the Appellant’s conduct as “public, open[,] and notorious,” while also noting that “under military case law, photographing or filming sexual acts is an offense punishable under Article 134.” Gov’t Br. at 8. The Government also argues that “a rational fact finder could conclude that the video in question was recorded surreptitiously” (an apparently new theory formulated by the Government’s appellate division), and this theory becomes a main thrust of the Government’s brief. The brief focuses on the service discrediting nature of the Appellant’s conduct, and dedicates only four short paragraphs to the Marcum factors, in which the Government argues almost summarily that “[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.

In a short reply brief, the Appellant attacks the Government for “revis[ing] the basis of culpability from that presented at trial and on appeal at the Army [CCA]” based on the new theory of the recording being surreptitious. Reply Br. at 4.

However, looking past the matter of the nature of the video recording, the Government’s argument is essentially that the Lawrence/Marcum factors do not apply outside of a case of consensual sodomy criminalized by Article 125. This theory is neither novel nor successful. See, for example, United States v. Harvey, 67 M.J. 758, 761 (A.F.Ct.Crim.App. 2009) (“The government avers that Marcum is inapplicable to the present case because the sodomy proscribed in Marcum was proscribed as a violation of Article 125, UCMJ, whereas the sodomy proscribed in the present case was proscribed as a violation of Article 133, UCMJ. We disagree with the government’s contention and conclude that the Marcum analysis is applicable to any private, consensual sexual conduct regardless of which UCMJ article the government chooses to charge the conduct.”). However, some quick research shows that CAAF hasn’t specifically rejected this theory.

At least, not yet.

Case Links:
ACCA opinion (summary affirmation)
Blog post: What’s Goings on
Appellant’s Brief
Appellee’s (Government) Brief
Appellant’s Reply Brief
Blog post: Argument preview

Yesterday we noted the interesting granted issue in United States v. Goings, No. 11-0547/AR: “WHETHER LAWRENCE v. TEXAS EXTENDS A ZONE OF PRIVACY TO THE INDECENT ACT OF WHICH APPELLANT WAS CONVICTED.”  We also noted our inability to find an ACCA opinion explaining what gave rise to that interesting issue.

A learned alert reader in the know has shared a case synopsis with us:

The issue briefed at ACCA involved an as-applied, constitutional challenge to appellant’s indecent acts conviction.  Appellant and a third person alternated video-taping and engaging in consensual, sexual acts with a female at an off-post apartment.  The video tape was discovered during a search on an unrelated offense.

Appellant argued at ACCA that Lawrence v. Texas extends a zone of privacy which protects his consensual, sexual conduct.  The government argued that appellant’s conduct is not protected by Lawrence because it was indecent and
service-discrediting.  In that regard, CAAF will be faced with determining how Clauses 1 and 2 of Article 134 interact with the first and third prongs of the US v. Marcum 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 [in Lawrence v. Texas]? . . . Third, are
there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.”

We are informed that ACCA affirmed without a written opinion.

Here’s another unusually interesting CAAF grant:  “WHETHER LAWRENCE v. TEXAS EXTENDS A ZONE OF PRIVACY TO THE INDECENT ACT OF WHICH APPELLANT WAS CONVICTED.”  United States v. Goings, __ M.J. __, No. 11-0547/AR (C.A.A.F. June 13, 2012).  CAAF also granted review of a Fosler issue in the case.  Unfortunately, I don’t see the Goings decision on ACCA’s website to try to figure out what the precise issue is.