CAAFlog » September 2012 Term » United States v. Medina

CAAF decided United States v. Medina, No. 13-5002/CG, 72 M.J. 148 (CAAFlog case page) (link to slip op.), on May 2, 2013, affirming the CGCCA’s action setting aside the Appellee’s conviction of sodomy in violation of Article 125, entered in accordance with his pleas, because the trial military judge did not adequately discuss with the Appellee how his conduct was outside of a constitutionally protected liberty interest.

The case was certified to CAAF by the Judge Advocate General of the Coast Guard, and the Government’s brief included this request: “We ask this Court for greater amplification on whether the military judge’s method of drawing attention to the Marcum factors constitutes a legally sufficient inquiry under Hartman.” Gov’t Br. at 9.

Judge Ryan writes for a unanimous court in a short six-page opinion:

In Hartman, we recognized that the presence of a “Marcum factor” — a fact separate and apart from the act of sodomy itself — distinguishes that conduct which may be subject to criminal sanction, and that conduct which is constitutionally protected under Lawrence. We characterized that “additional fact” as “a matter of ‘critical significance’” because it “distin[guishes] between what is permitted and what is prohibited.”

Next, we emphasized that: “The fundamental requirement of [a] plea inquiry under [United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969),] and [Rule for Courts-Martial (R.C.M.)] 910 involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct.” Because the inquiry did not establish the accused’s personal understanding of the relationship between the facts he was admitting and why his plea to voluntary sexual activity with an adult could nonetheless be subject to criminal sanction, we held that the plea was improvident.

Here, pursuant to Appellee’s guilty plea to consensual sodomy, the military judge and Appellee engaged in a dialogue during which the military judge elicited facts in an attempt to demonstrate that Appellee’s sexual activity was subject to criminal sanction. However, the dialogue did not meet the requirements of Hartman or Care, which are different from the standard for legal sufficiency, because the military judge failed to ensure Appellee’s personal understanding of matters critical to his guilt; namely, why these additional facts removed his sexual activity from the protection recognized in Lawrence and Marcum and subjected that activity to criminal sanction. We therefore affirm the CGCCA’s decision that Appellee’s plea was improvident.

Slip op. at 4-6 (citations omitted). That seems to be well-amplified to me.

Case Links:
CGCCA opinion
Blog post: CGCCA sets aside plea of guilty to consensual sodomy on Hartman grounds
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: CAAF affirms CGCCA’s ruling in the funky cold Medina
Blog post: Opinion analysis

CAAF has affirmed CGCCA’s holding in Medina setting aside an Article 125 conviction based on United States v. HartmanUnited States v. Medina, __ M.J. __, No. 13-5002 (C.A.A.F. May 2, 2013).  Judge Ryan wrote for a unanimous court.  Let the dance party at Coast Guard appellate defense commence.

Audio of this week’s oral arguments at CAAF is available at the following links:

CAAF will hear oral argument in United States v. Medina, No. 13-5002/CG, on Tuesday, March 12, 2013, after it hears argument in United States v. Coleman. The Judge Advocate General of the Coast Guard certified two issues in Medina after the Coast Guard CCA set-aside the Appellee’s plea of guilty to a charge of consensual sodomy upon finding that the trial judge failed to adequately advise the Appellee about the zone of privacy recognized by Lawrence v. Texas and the Marcum factors that can overcome it in a military context. CAAF will consider the following issues:

I. Whether the Coast Guard Court of Criminal Appeals erred by applying the providency requirements of Hartman in a case where the facts elicited during the providency inquiry revealed that the sexual activity fell outside of the constitutional protections bounded by Lawrence v. Texas because it involved a recent, prior trainer-trainee relationship.

II. Assuming a Hartman inquiry is required, what constitutes a sufficient colloquy between the military judge and an accused to support a plea of guilty to the specification of sodomy under the standard set forth in Hartman.

In United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011), the Appellant was convicted, pursuant to his plea before a military judge sitting as a general court-martial, of a single specification of consensual sodomy, and sentenced to confinement for one month, reduction to E-1, and a bad-conduct discharge. But in a unanimous opinion drafted by then Chief Judge (now Senior Judge) Effron, CAAF set-aside the findings. The opinion is short, and includes the following discussion:

During the plea inquiry in the present case, the military judge described the offense of sodomy solely in terms of the definition of the offense set forth in the Manual for Courts–Martial (MCM), which describes various forms of sexual conduct between two people. Consistent with Care, the military judge asked Appellant to explain in his own words why he believed he was guilty of the offense. Appellant responded by describing the nature of the sexual conduct between himself and the other party to the sexual act. The inquiry did not reflect consideration of the Marcum framework.

At the conclusion of the military judge’s colloquy with Appellant, he asked counsel if either desired any further inquiry. The trial counsel then engaged in a discussion with the military judge about Lawrence and Marcum. Trial counsel asked the military judge to pose questions to the accused about the location of the act of sodomy, the presence of any other person in the room, and the military relationship between Appellant and the other person involved in the sexual act. In response to the questions from the military judge, Appellant stated that the incident took place at the Transient Visitors Quarters on a U.S. Navy facility; that the other participant in the sexual activity was a member of the Navy assigned to the same ship as Appellant; and that a third shipmate “was present and asleep in the room” at the time of the charged act of sodomy. The military judge did not explain to Appellant the significance of the questions, nor did the military judge ask Appellant whether he understood the relationship of the questions and answers to the distinction drawn in Lawrence and Marcum between constitutionally protected behavior and criminal conduct.

The fundamental requirement of plea inquiry under Care and R.C.M. 910 involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct. A discussion between the trial counsel and the military judge about legal theory and practice, at which the accused is a mere bystander, provides no substitute for the requisite interchange between the military judge and the accused. In the absence of a dialogue employing lay terminology to establish an understanding by the accused as to the relationship between the supplemental questions and the issue of criminality, we cannot view Appellant’s plea as provident. See O’Connor, 58 M.J. at 454.

Hartman, 69 M.J. at 468-69. Medina is an almost-identical case, except that in addition to consensual sodomy the Appellee was also convicted, pursuant to his pleas, of assault consummated by a battery, in violation of Article 128, UCMJ, and was sentenced to confinement for 13 months, reduction to E-1, and a bad-conduct discharge. The CGCCA’s opinion includes this discussion:

The military judge was clearly attempting to elicit from Appellant facts supporting a conclusion that his conduct fell outside of a constitutionally protected liberty interest and the Marcum factors. But this discussion fell short of Hartman‟s requirements. The military judge did not explain to or discuss with Appellant why his particular conduct was of such a nature that it fell outside the bounds of a constitutionally protected liberty interest. Although the military judge indirectly touched on the fact that Appellant‟s sexual acts with someone who had recently been a “boot” under his charge as a company commander could potentially override the liberty interest, there was no further explanation beyond a bare inquiry into the existence of the former company commander relationship and the E-6/E-3 grade differential. The record also does not establish that Appellant was pleading guilty because he believed his conduct was outside the scope of sexual conduct protected under current case law. For these reasons, we hold Appellant‟s guilty plea to consensual sodomy was improvident, and we set aside the conviction.

United States v. Medina, 71 M.J. 652, 654 (C.G.Ct.Crim.App. 2012). The CCA then split on the question of sentence reassessment, and remanded the case for a rehearing. The next month, in December, 2012, the JAG certified the case to CAAF.

Adding to the mix, Medina comes at a time when CAAF is also considering whether the Marcum factors are the functional equivalent of elements in United States v. Castellano, No. 12-0684/MC.

Read more »

CAAF’s daily journal is catching up on the holiday. From December 20:

No. 13-5002/CG.  U.S. v. Wilson MEDINA.  CCA 1325. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

I.    WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE PROVIDENCY REQUIREMENTS OF HARTMAN  IN A CASE WHERE THE FACTS ELICITED DURING THE PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY FELL OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v. TEXAS BECAUSE IT INVOLVED A RECENT, PRIOR TRAINER-TRAINEE RELATIONSHIP.

II.   ASSUMING A HARTMAN INQUIRY IS REQUIRED, WHAT CONSTITUTES A SUFFICIENT COLLOQUY BETWEEN THE MILITARY JUDGE AND AN ACCUSED TO SUPPORT A PLEA OF GUILTY TO THE SPECIFICATION OF SODOMY UNDER THE STANDARD SET FORTH IN HARTMAN.

We previously discussed Medina here, after the CGCCA set-aside a plea of guilty to consensual sodomy because:

The court unanimously agreed that under United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011), the plea of guilty to consensual sodomy had to be set aside becuase the military judge didn’t adequately advise the accused about the zone of privacy recognized by Lawrence v. Texas and the Marcum factors that can overcome it in a military context.  The court split 2-1 on whether to order a new sentence hearing.  The majority opinion by Judge Duignan, joined by Chief Judge McClelland, remanded for a new sentence hearing.  In a separate opinion, Judge Havranek indicated he would have the court reassess the sentence rather than remand for a new sentencing hearing.

And Hartman (from the 2010 Term) is discussed here.

While the decision isn’t yet on its website, CGCCA set aside a plea of guilty to consensual sodomy in this opinionUnited States v. Medina, No. 1325 (C.G. Ct. Crim. App. Nov. 7, 2012).

The court unanimously agreed that under United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011), the plea of guilty to consensual sodomy had to be set aside becuase the military judge didn’t adequately advise the accused about the zone of privacy recognized by Lawrence v. Texas and the Marcum factors that can overcome it in a military context.  The court split 2-1 on whether to order a new sentence hearing.  The majority opinion by Judge Duignan, joined by Chief Judge McClelland, remanded for a new sentence hearing.  In a separate opinion, Judge Havranek indicated he would have the court reassess the sentence rather than remand for a new sentencing hearing.