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.

The facts of the case as stated in the Government’s brief are that:

After Appellee’s family retired to their bedrooms, Appellee and SN J.M. were left alone in the family room on the main level. Approximately forty-five minutes to an hour later, SN J.M. and Appellee began a conversation regarding a scar located on SN J.M.’s upper chest. After SN J.M. pulled down the neck of his shirt to reveal the mark, Appellee touched the scar and then pushed his hand down inside SN J.M.’s pants and underwear to fondle his penis and testicles. Appellee then pleaded with SN J.M. to continue by stating: “Let me do it.” SN J.M. responded by forcibly removing Appellee’s hand from his pants and stating that Appellee’s actions were “messed up.”

Afterwards, SN J.M. went outside and smoked a cigarette, where Appellee accompanied him. SN J.M. was upset, and expressed to Appellee that he lost faith in what Appellee taught him in boot camp. In return, Appellee acknowledged that his actions were wrong by apologizing to SN J.M.

After some time, SN J.M.’s indignation abated and he asked Appellee to spend the night, presumably because he was still intoxicated. After Appellee made a bed for SN J.M. on the family room futon, SN J.M. laid down. Without SN J.M. inviting Appellee to touch him, Appellee removed SN J.M.’s pants and underwear, exposing his genitals, and performed oral sex on him. After approximately a minute, SN J.M. voiced his displeasure by stating: “This was wrong.” At that point, Appellee stopped performing oral sex on SN J.M.

Gov’t Br. at 5-6 (citations to record omitted). The Government’s brief makes an argument and a request. First, the Government argues that Hartman doesn’t apply in this case because “Appellee used his military position, rank, and authority as a company commander to take advantage of an impressionable and compliant former trainee . . . The relationship with the victim was inherently coercive and the sexual sodomy was with a person who was not in a position to refuse consent freely.” Gov’t Br. at 7. Accordingly, “In this case, the sexual conduct falls categorically outside the protected zone articulated in Lawrence.” Id.

Then the Government plainly states: “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.

At the heart of the Government’s argument is the position that “a conviction of non-forcible sodomy does not, by itself, equate to consensual sodomy, or at least sodomy free from coercion.” Gov’t Br. at 14. Moreover, “The facts of this case do not rise to the liberty interest outlined in Lawrence. . . . Because of these facts, the requirements set forth in Hartman do not apply.” Gov’t Br. at 17. The Government also takes the CCA to task for “bas[ing] its decision on the supposition that the charged specification of sodomy without the sentence enhancement element of sodomy by force dictates whether a Hartman-like inquiry is required or not.” Gov’t Br. at 18. But the Government argues that, “Hartman makes clear that a dialogue is necessitated between the military judge and the accused [only] when the distinction between permitted and criminal conduct constitute a ‘critical significance.'” Id. The Government distinguishes this case from Hartman both on the facts of the underlying sexual conduct, but also on the nature of the inquiry that was conducted during the guilty plea.

The Appellee’s answer takes a broad position: that Article 125 is unconstitutional as applied to the Appellee because his conduct was within the Appellee’s constitutionally-protected liberty interests. The brief undertakes an analysis of the Marcum factors applied to the facts of this case in an effort to support this argument. But focusing more narrowly, the Appellee also argues that the plea was improvident because “the record cannot establish that the Appellant was pleading guilty because he believed his conduct was outside the scope of constitutionally protected sexual conduct.” App. Br. at 8. This is a downhill fight for the Appellee, and his argument is essentially that Hartman should be read plainly to require “that when a charge on its face may implicate constitutionally protected conduct, the military judge is required to engage the accused in a discussion which explains the critical differences between constitutionally protected and criminal behavior.” App. Br. at 19 (emphasis in original).

In a reply brief, the Government addresses the Appellee’s application of the Marcum factors, arguing that the underlying conduct is not protected based on the facts of the case.

One phrase rings clearest in Medina: “the record does not support…” If it’s not in the record, it didn’t happen or it doesn’t exist. The absence in this case of a detailed Hartman inquiry between the military judge and the Appellee is a real problem for the Government. But the second issue has the potential to make that problem even bigger, particularly considered in light of CAAF’s broader review of Article 125 in Castellano, if CAAF decides to expand the scope of the inquiry.

Accordingly, I anticipate a tough fight for the Government, and ultimately either a little bad news or a lot.

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

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